Rodriguez v. Norfolk and Western Ry. Co.

• Citation: 228 Ill.App.3d 1024,170 Ill.Dec. 708,593 N.E.2d 597
• Decision Date: 10 April 1992
• Docket Number: No. 1-89-2060,1-89-2060
• Parties: , 170 Ill.Dec. 708 Vincent RODRIGUEZ, Plaintiff-Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, and CMC Real Estate, Formerly Known as Chicago, Milwaukee, St. Paul & Pacific Railroad, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 597

593 N.E.2d 597

228 Ill.App.3d 1024, 170 Ill.Dec. 708

Vincent RODRIGUEZ, Plaintiff-Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, and CMC Real Estate Formerly Known as Chicago, Milwaukee, St. Paul &amp Pacific Railroad, Defendants-Appellants.

No. 1-89-2060.

Appellate Court of Illinois First District, Sixth Division.

April 10, 1992.

Rehearing Denied June 9, 1992.

Ross & Hardies, Chicago (Robert L. Landess, Daniel P. Hogan and Raymond H. Grobel, of counsel), for defendants-appellants.

Terrence K. Hegarty & Assoc. Ltd. (Terrence K. Hegarty and James S. Smith, of counsel) and William J. Harte, Ltd., Chicago (William J. Harte and Joan M. Mannix, of counsel), for plaintiff-appellee.

Justice LaPORTA delivered the opinion of the court:

Plaintiff Vincent Rodriguez sued CMC Real Estate, formerly known as Chicago, Milwaukee, St. Paul and Pacific Railroad [Milwaukee], and Norfolk and Western Railway Company [Norfolk] on charges of negligence and willful and wanton conduct alleging he was struck by something protruding from a Norfolk train as he walked alongside the train. Norfolk owned and operated the train and Milwaukee owned the tracks and the railroad right-of-way which were elevated above street level at the scene of the occurrence at Grand and Cicero Avenues in Chicago. At the conclusion of the trial a jury awarded Rodriguez judgment against both defendants in the amount of $6,122,466.76. In post-trial motions the trial court rejected plaintiff's allegation of Norfolk's willful and wanton conduct as a matter of law and granted defendants' motion for a remittitur, reducing the net amount of the verdict to $3,060,604.90.

Defendants [Milwaukee and Norfolk] allege on appeal that they owed no duty to warn plaintiff of an open and obvious danger because plaintiff was a trespasser at the time of the accident and therefore the trial court erred in not directing a verdict in favor of defendants or granting judgment notwithstanding the verdict or granting a new trial. Further, Norfolk contends: it had no duty to ring the engine bell before moving and its failure to do so was not a proximate cause of plaintiff's injury; plaintiff counsel's arguments were not supported by the evidence: the trial court erred in permitting three expert witnesses to testify for plaintiff when the names of the witnesses were not disclosed in a timely manner; and the amount of the award granted was clearly excessive.

This appeal arises from a personal injury suit filed by plaintiff against Norfolk and Milwaukee alleging negligence in that: (1) Milwaukee failed to fence a path leading to the right-of-way and to install a locked gate, (2) Milwaukee failed to post warning signs of the danger to pedestrians by the path leading up the embankment to tracks which were above street level, and (3) Norfolk failed to ring the engine bell to notify persons around the train of a potential danger. The second count charged that defendants' actions rose to the level of willful and wanton conduct because: (1) Milwaukee knew of the latent danger of standing near a moving freight train yet failed to warn plaintiff of that danger; (2) Norfolk operated a train from a standing to a moving position when it or its agent knew plaintiff was standing next to the train; and (3) Norfolk operated a train with a shifted load protruding off the side when it knew it was likely to cause serious bodily harm to someone standing at the side of the train. Plaintiff alleged that defendants' negligence and/or willful and wanton conduct proximately caused plaintiff's injury on October 30, 1984.

At trial, 28 witnesses including plaintiff testified.

Robert Hesse testified that he was employed as a private investigator for the State of Illinois and assigned to go to the scene of the accident. He testified that he found a 3-foot path up the embankment that was covered with ballast stone used on the railway right-of-way. He testified that three-quarters of the way up, stones had been laid flat to create steps. He testified that he found another path, this one made of dirt, on the other side of the tracks about 250 to 300 feet further down the tracks.

Warren Taylor testified that he is the chief engineer for Belt Railway Company of Chicago. He identified the place where his company's property ended and where Milwaukee's began. He indicated on a map that the high stand switch used by Norfolk workers was located on Milwaukee property.

Robert Bielecki, a professional photographer, testified that he prepared for trial an aerial photograph of the accident scene.

Hector Gutierrez, who lives near the accident scene, testified that he "constantly" observed people climbing the path on the north side of the tracks, walking along the tracks and then descending at another point on the south side of the tracks. He testified that when he stood on one side of the path he could hear the voices of people on the other side. On cross-examination he testified that he had never used the path to cross the tracks. He testified that nearby Cicero Avenue had a place to cross the tracks that included sidewalks.

Robert Amidea, an auto mechanic who works at Grand and Cicero, testified that in the past he had seen children, adults and railroad workers use the path. He testified that railroad employees would use the path to gain access to repair the tracks and also to go down to the mini-mart grocer. He testified that he had never used the path.

Mark Maldonado testified that he lives less than a block from Grand and Cicero on the side of the tracks where the dirt path was located. He testified that he had seen "mainly younger teenager-type people" and some children use the path and that it "could have been a half dozen times during the summer."

Andrew Tryba testified that he manages a lumber company near Cicero and Grand and that "everybody and his brother: railroad workers, kids, grownups" would use the path. He testified that railroad workers would go down the path to buy sandwiches at the mini-mart and fruit from a fruit stand next door to the lumber store located in front of the path in the parking lot. He testified that railroad workers would park in the lot to go up to repair the tracks.

Marvin Dahlstrom, a switchman on the Norfolk train involved in the accident, was called as an adverse witness and testified that he was working as the conductor on October 30, 1984 along with Ron Mangialardi, Richard Ross and a man named Jones. The train involved in the accident was commonly referred to as the 1159 because it left the yard at 11:59 p.m. He testified that the path from the tracks at Grand and Cicero was used by company employees to change crews and get picked up in company vehicles. He testified that he has seen members of the general public use the path. He also testified that a freight train usually stops about 10 or 15 minutes at that location where the high stand switch is located in order to get permission to cross over onto Belt Railway property.

Siomara Rodriguez, the plaintiff's sister, testified about plaintiff's background and laid the foundation to permit submission into evidence of photographs of plaintiff, both before and after the accident.

Gera-Lind Kolarik testified by videotape to authenticate a "Day in the Life" tape she made of Rodriguez for which she was paid $1,500. The videotape was then shown to the jury.

Ronald Mangialardi, a crew member on the 1159 train, testified that 59 cars were on the freight train involved in the accident. He testified that when he started working for the railroad company he was instructed to be careful when standing next to a freight train because of the danger of something dragging or hanging off the car. He testified that he has often seen lumber sticking out from freight cars and that during the four weeks before and the four weeks after the accident, he saw lumber protruding from at least one car every day on his shift with the 1159 run. He testified that when something protrudes approximately 2 feet out beyond the side of a car, the train should be stopped to correct the shifting load. He testified that in the four weeks prior to the accident his crew was under orders to complete its run in 8 hours. He looked at the listing of cars on the 1159 train the day of the accident and testified that six carried lumber.

Plaintiff's counsel read a Norfolk rule to the jury: "The engine bell must be rung when an engine is about to move; except after momentary stops in continual switch movements."

Mangialardi testified that he knew of the path in question which was covered by railroad ballast and that it was used by railroad crews and the public. He testified that the morning of the accident, he got off the caboose of the car to realign the switch and he saw two men, one, Rodriguez, who said the train had "gotten" him. Mangialardi testified that Rodriguez appeared injured on his left arm and was bleeding. He appeared to be in intense pain so Mangialardi testified that he told Rodriguez and a man who had come to Rodriguez' aid that he would get help. He ran back to the train to tell the conductor to call the paramedics. Mangialardi testified that when he and the conductor returned to the scene, Rodriguez was gone but a Chicago policeman was there who asked that they help find the end of Rodriguez' arm.

On cross-examination, Mangialardi testified that a shifted load could extend forward, backwards or even up in the air in the car as well as over the side of a car. He testified that he had the seniority that permitted him to chose to work the 1159 train. He also testified that he was "dismissed" from Norfolk in 1985 and had previously been dismissed in 1982.

Leonardo Elizondo, a jogger who came to Rodriguez' aid that morning, testified that he was jogging when he discovered Rodriguez crying out in pain. He tried to keep Rodriguez calm and bound up his arm with a jump rope to stop the bleeding while they waited for police to arrive....