Taluzek v. Illinois Cent. Gulf R. Co.

• Decision Date: 12 October 1993
• Docket Number: No. 1-91-1025,1-91-1025
• Citation: 626 N.E.2d 1367,193 Ill.Dec. 816,255 Ill.App.3d 72
• Parties: , 193 Ill.Dec. 816 James TALUZEK, Plaintiff-Appellant, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, a corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1367

626 N.E.2d 1367

255 Ill.App.3d 72, 193 Ill.Dec. 816

James TALUZEK, Plaintiff-Appellant, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, a corporation Defendant-Appellee.

No. 1-91-1025.

Appellate Court of Illinois First District, First Division.

Oct. 12, 1993.

David A. Novoselsky & Associates, Chicago (David A. Novoselsky, of counsel), Philip E. Howard, LTD, Chicago, of counsel, for plaintiff-appellant.

Baker & McKenzie, Chicago (Francis D. Morrissey, Thomas F. Tobin, Michael A. Pollard and Joan O'Reilly Oh, of counsel), for defendant-appellee.

Justice O'CONNOR delivered the opinion of the court:

This is a suit for damages, brought under the Federal Employers' Liability Act, arising from an accident which occurred in one of the train yards belonging to defendant, Illinois Central Gulf Railroad Company. Plaintiff, James Taluzek, a locomotive engineer for defendant, fell from a locomotive owned by defendant. A jury returned a verdict in defendant's favor that plaintiff now appeals.

We affirm.

On the morning of December 23, 1985, plaintiff was the engineer of the locomotive in question and was assembling trains by "switching" boxcars from track to track. Plaintiff had been working on the locomotive for about 45 minutes when its engine quit. In order to restart the engine, plaintiff had to leave the locomotive's cab and walk to the engine compartment which was recessed off an 18 inch catwalk on the locomotive's left side. A handrail, running continuously around three of the locomotive's four sides, is affixed at approximately shoulder height, 63 1/2 inches, above the surface level of the catwalk. Plaintiff stated that, before exiting the cab, he looked down at the catwalk, but did not see anything unusual. He walked along the catwalk sideways, grabbing at the handrails above him in a "hand over hand" manner. Plaintiff opened the doors to the engine compartment, turned the "starter switch" with his left hand, and pulled the "lay shaft" with his right hand. As he pulled back on the lay shaft, he turned his body to the right and raised his right leg. When he attempted to put his right foot down, his leg "slipped out from under" him. Plaintiff fell backwards to the ground. The next thing he can recall is being placed in an ambulance. Although he never saw what his foot slipped on, plaintiff stated that it "felt like either grease or oil."

Frank Felice was the fireman working with plaintiff in the locomotive's cab at the time of the accident. When the engine quit, Felice saw plaintiff leave the cab although he did not see plaintiff fall. After four to five minutes passed, Felice looked out onto the catwalk because the engine had not yet restarted. Felice saw plaintiff on his back, sprawled on the ground. Plaintiff told Felice that he had slipped off the engine.

After summoning help, Felice went onto the catwalk in order to restart the engine because he wanted to move the locomotive so that paramedics could reach plaintiff. While on the catwalk, Felice noticed a "semi-round," "pond" shaped pool of oil or "some other substance" dripping off the catwalk. This oil was outside of the engine compartment doors, which were opened. Felice did not know from where the oil had come nor could he recall whether the oil was clean or dirty, light or dark. Felice stated that while he was restarting the engine, he, too, stepped in the oil. Felice did not notice any footprints in the oil before he stepped in it. The oil puddle was only on the outside of the engine compartment, and no oil appeared on the floor inside the engine compartment. Felice admitted that one could "draw" oil from the "governor" which was located inside the engine compartment.

During its case in chief, defendant sought to establish that the oil appeared on the catwalk only after plaintiff had fallen and, thus, could not have caused the fall. To that end, John Jurczyk, defendant's general foreman at the time, testified that he conducted an inspection of the equipment shortly after plaintiff's fall. Accompanying him was Ed Orlowski, a machinist who was to assist in the inspection. When Jurczyk arrived at the scene, plaintiff had been placed in the ambulance. Felice told Jurczyk that plaintiff had slipped in some oil on the locomotive and had fallen to the ground. Jurczyk found a puddle of "fresh," clear, yellow oil of "recent origin" on the catwalk. No footprints were in the oil nor was any oil dripping off the side of the catwalk. The oil puddle was round, "pie-shaped," and approximately 18 inches in diameter. Jurczyk believed the oil was "fresh" because it was "still puddled." Based on his experience, Jurczyk did not believe the oil had been present when the locomotive was running because the puddle would have lost its round appearance and would have been spread out more. Jurczyk scraped some of the oil off the catwalk and let it drip off the side into a paper cup in order to obtain a sample. He then directed Orlowski to sand the area. Jurczyk and Orlowski examined the locomotive and found no oil leaks in either the compressors or the inside of the engine compartment.

Ed Orlowski's testimony matched Jurczyk's in most aspects. Orlowski stated that he did not see any footprints in the "round disk" of oil that was on the catwalk. Orlowski found no evidence of either defects or leaks on the locomotive. Orlowski explained that, to start the engine in question, one had to "prime" the engine first by filling it with fuel oil. After that is completed, the starter button has to be pushed. Orlowski examined these components on the engine and found no oil leakage. Orlowski stated that, in the engine compartment, someone could "drain oil on the governor" or from the "crank case." In Orlowski's opinion, the oil that he saw on the catwalk could not have come from the crank case because oil from that source has a heavy consistency. In contrast, oil from the "governor" is a clear, fine oil. The oil on the catwalk resembled oil from the "governor." Orlowski stated that in order for the oil on the catwalk to appear as the result of a leak from the "governor," the floor of the engine compartment would have had to have been flooded with oil, causing it to overflow onto the catwalk. Orlowski found no evidence of such flooding in his inspection.

Defendant also played for the jury a tape recording of plaintiff recorded on January 13, 1986, some two weeks after the fall. Plaintiff recalled the accident in the following manner:

"My left hand went from trying to start and my right hand went to work the shaft and the next thing I knew I was on the ground and the fireman was trying to wake me up."

When asked if anything had caused him to fall, plaintiff responded that he "didn't notice there was (sic ), but the conductor and the fireman said there was oil on the catwalk."

The jury also heard extensive testimony regarding plaintiff's medical condition. It was the opinion of plaintiff's doctor and experts that plaintiff suffers from post-traumatic encephalopathy--brain damage following a head trauma. This condition manifests itself in the form of severe headaches, depression, mood swings, and sexual dysfunction. However, defendant's medical expert disagreed with the diagnosis and attributed plaintiff's condition to depression and low self-esteem. He cited plaintiff's history of heavy drinking as an independent cause of the depression and mood swings. All the medical witnesses agreed that diagnostic tests, such as CAT scans and the like, revealed no objective evidence of brain damage and were considered "normal."

Following deliberations, the jury returned a verdict in favor of the defendant. The circuit court denied plaintiff's post-trial motion, and this appeal ensued.

Plaintiff asserts that the circuit court erred in denying his motion for judgment notwithstanding the verdict (j.n.o.v.).

A court may grant a motion for j.n.o.v. only when all the evidence, viewed in a manner most favorable to the nonmoving party, so overwhelmingly favors the moving party that no contrary verdict could ever stand. (Pedrick v. Peoria and Eastern Railroad Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, McKanna v. Duo-Fast Corp. (1987), 161 Ill.App.3d 518, 527, 113 Ill.Dec. 348, 515 N.E.2d 157; see also Derrico v. Clark Equipment Co. (1980), 91 Ill.App.3d 4, 8, 46 Ill.Dec. 232, 413 N.E.2d 1345.) A j.n.o.v. is improper where reasonable minds may differ as to inferences or conclusions to be drawn from the facts presented. (Lee v. Grand Trunk Western Railroad Co. (1986), 143 Ill.App.3d 500, 510, 97 Ill.Dec. 491, 492 N.E.2d 1364.) Where evidence demonstrates a substantial factual dispute, or where assessment of witnesses' credibility or resolution of conflicting evidence may determine the outcome, a court errs in entering a j.n.o.v. Lee v. Grand Trunk Western Railroad Co., 143 Ill.App.3d at 509, 97 Ill.Dec. 491, 492 N.E.2d 1364.

Plaintiff based his claim against defendant on the Federal Safety Appliance Act (45 U.S.C. § 1 et seq. (1990)) and the Boiler Inspection Act. (45 U.S.C. § 22 et seq. (1990).) Those Acts impose upon defendant an absolute and continuing duty to maintain the locomotive in proper condition. (Lilly v. Grand Trunk Western Railroad Co. (1943), 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411; Rogers v. Consolidated Rail Corporation (2nd Cir.1991), 948 F.2d 858.) An action for violations of the Acts is prosecuted as an action under the Federal Employers' Liability Act (FELA). (45 U.S.C. § 51 et seq. (1990).) Under FELA, a railroad company incurs liability for damages to any employee when there has been a violation of a safety statute specifically aimed at the railroad industry. (Urie v. Thompson (1949), 337 U.S. 163, 188-89, 69 S.Ct. 1018, 1034-35, 93 L.Ed. 1282.) Thus, violations of the Acts are treated as negligence per se authorizing an action under section 51 of FELA. (McCarthy v. Pennsylvania Railroad Co. (7th Cir.1946), 156 F.2d 877, 880,cert. denied 329 U.S. 812, ...