Templeton v. Chicago and North Western Transp. Co.

• Decision Date: 15 March 1991
• Docket Number: No. 1-90-0312,1-90-0312
• Parties: , 155 Ill.Dec. 954, 14 O.S.H. Cas. (BNA) 2126 Tracy TEMPLETON, Plaintiff-Appellee, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 467

570 N.E.2d 467

211 Ill.App.3d 489, 155 Ill.Dec. 954,

14 O.S.H. Cas. (BNA) 2126

Tracy TEMPLETON, Plaintiff-Appellee, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Defendant-Appellant.

No. 1-90-0312.

Appellate Court of Illinois,

First District, Fifth Division.

March 15, 1991.

George H. Brant, Myles L. Tobin, Chicago and North Western Transp. Co., Cornelius P. Callahan, Mark E. Christensen, Butler, Callahan and Ehret, Chicago, for defendant-appellant.

Demos & Burke, Chicago (William J. Burke, James Thomas Demos, Linda A. Leonetti, of counsel), for plaintiff-appellee.

Justice MURRAY delivered the opinion of the court.

The plaintiff, Tracy Templeton (Templeton), was an employee of the defendant, Chicago and North Western Transportation Company (North Western). On January 27, 1984, Templeton was severely injured when he fell 31 feet through an opening in the deck of a railroad bridge to the ice below. At the time he was injured, Templeton was working on North Western's bridge spanning the Illinois River near Pekin, Illinois. Templeton brought a negligence action pursuant to the Federal Employers' Liability Act (FELA), (45 U.S.C. § 51 et seq.) in which plaintiff alleged that he was injured as a result of the negligence of North Western. A trial by jury resulted in a verdict for the plaintiff in the amount of $3.5 million after a reduction for the jury's finding that the plaintiff was 14% contributorily negligent. North Western appeals from the final judgment entered on the verdict.

Templeton was 27 years of age at the time of his accident on January 27, 1984. He began employment with North Western in 1980. He worked both as a painter and a carpenter on the Bridge and Building (B & B) crew. The B & B department was responsible for the construction and maintenance of bridges.

The redecking project to which Templeton was assigned in October 1983, required the B & B crew to replace all of the ties on the Illinois River bridge in successive 40-foot sections. By January 27, 1984, the date of Templeton's accident, the redecking had been completed, and the B & B crew was working on a fixed surface. However, the railroad track still had to be realigned in order to permit trains to again travel over the bridge at nominal operating speeds. Track realignment required access to the underside of the bridge, which was accomplished by temporarily removing individual sections of the walkway grating. Realignment work was being performed throughout the week of Templeton's accident.

Templeton's accident occurred on the bridge surface at about 10 a.m. He was assigned to remove bolts called "double grips" with an air impact wrench. Meanwhile, other employees removed a single, 30 feet by 15 inch section of walkway grating so that a scaffold could be lowered through the opening they had created. Once the scaffold was in place another employee would use it as a platform underneath the bridge to assist in retightening bolts which anchored the track to the ties.

The narrow opening in the bridge deck was not barricaded while the employees raised the scaffold. Templeton was not wearing a safety line at the time of his accident. North Western's safety policy did not require a restraining device to be used in all facets of bridge work.

At the time of the accident, Templeton was continuing to remove "double grips" on the west side of the bridge. His air impact wrench was connected to an air compressor by a hose approximately 100 feet long. His foreman thought Templeton was getting too far ahead of the rest of the crew and called him back. As Templeton started to walk back toward the rest of the crew, the hose on the air impact wrench hung up on one of the "double grips".

No one knows exactly what happened next. No one saw what caused Templeton to fall. North Western alleges the last time anyone saw Templeton, he was moving south, but looking north, about 5- or 6-feet north of the narrow opening in the walkway. Templeton alleges the first notice any of the co-workers had of the fall was a scream at which time they each looked around and saw the plaintiff falling through the opening in the deck with his hand slightly lower than his feet and the air impact wrench still in his hands.

Templeton had no recollection of the events of the occurrence and could not say what happened or why or how he fell. A co-worker testified that he saw the plaintiff bounce off the ice below, slide ten feet, then try unsuccessfully to get up. In any event, Templeton landed on the ground adjacent to the river and some 31 feet below the bridge. He was taken to the hospital by an emergency rescue squad. Templeton has suffered severe physical injuries as a result of his fall. The testimony conflicts as to the extent of brain damage, if any, sustained by Templeton.

North Western raises the following issues on appeal: (1) whether the trial court erred in permitting plaintiff to introduce evidence that North Western allegedly failed to comply with Occupational Safety and Health Administration (OSHA) regulations; (2) whether the trial court erred in instructing the jury that such an alleged violation could be considered as evidence of railroad negligence; (3) whether the trial court erred in permitting plaintiff to introduce evidence of previous employee accidents on other North Western bridges; (4) whether the trial court erred in not ordering a new trial when it learned that the jury surreptitiously brought extrinsic evidence into jury deliberations; and (5) whether the size of the verdict was excessive.

In its most decisive among the five alleged errors, North Western argues that the trial court erred in instructing the jury that a violation of an OSHA regulation could be considered as proof of North Western's negligence. OSHA regulations are statutorily created working conditions based on the Federally enacted Occupational Safety and Health Act of 1970. (OSH Act.) (29 U.S.C. § 651 et seq. (1970).) It is North Western's contention that OSHA is inapplicable to a railroad employee such as Templeton.

Railroad workers do occupy a somewhat different status than the average American worker whether he is a fireman, oiler, engineer or whatever. The rights and responsibilities of the railroad worker injured during his employment are basically determined by the FELA (45 U.S.C. § 51, et seq. (1908).) and Federal decisions construing that act. (Norfolk & Western Ry. Co. v. Liepelt (1980), 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689.) The FELA allows suits involving injuries to railroad men to be filed in either State or Federal courts. 45 U.S.C. § 56 (1948).

At trial testimony was introduced that certain safety standards, including OSHA standards, required nets or safety belts whenever a worker was working higher than 25 feet above ground. The trial court also gave the jury an instruction embodying the OSHA catch net regulation.

The nub of North Western's argument concerns the testimony of the absence of a safety net and safety belt and the judge's instruction that the jury could consider OSHA regulations in its consideration of the issue of North Western's negligence.

In 1970 Congress enacted the Federal Railroad Safety Act (FRSA). (45 U.S.C. § 421 et seq. (1970).) The FRSA contemplated a comprehensive and uniform set of safety regulations in all areas of railroad operations. (Chicago Transit Authority v. Flohr (7th Cir.1977), 570 F.2d 1305.) The United States Secretary of Transportation is charged with the duty to prescribe all necessary rules, regulations ordered and standards for all areas of railroad safety. (45 U.S.C. § 431 (1970).) The Secretary of Transportation has delegated these responsibilities to the Administrator of the Federal Railroad Administration (FRA), a unit of the Department of Transportation. (49 C.F.R. § 1.49(m) (1988).) Further, North Western argues that the FRA has exclusive jurisdiction over working conditions pertaining to railroad bridges and the issue of whether or not safety nets and safety belts are required in bridge redecking work.

North Western contends that the FRSA and not OSHA controls the safety standards applicable to the work Templeton was engaged in, i.e. "redecking of the bridge's railway bed."

Plaintiff asserted that North Western had been negligent in violating regulations promulgated by OSHA. Plaintiff argues that the OSHA requirements of nets and safety belts are not preempted by the FRSA. The basis of this argument is that OSHA regulations are only preempted by the FRSA when there is an exercise of authority over the same working conditions regulated by OSHA.

The real legal issue in respect to safety regulations was whether the FRA actually exercised its jurisdiction over the railroad deck work, and if not, does the FRSA preclude the application of OSHA safety rules as evidence of a railroad's negligence in this case.

In this case, at the time of Templeton's injury, January 1984, there was no clear cut FRA regulation requiring nets or safety belts to be provided for workers on railroad bridges. In his 74-page brief plus appendix the plaintiff points to none. Alternatively, North Western points to numerous sections of the Federal Register indicating that no regulations requiring nets and/or safety belts were ever adopted by the FRA. Finally the fact that there was no such a requirement is disclosed in a proposed notice of rule published in the Federal Register by the FRA (56 Fed.Reg. 3434-41 (1991)) and brought to this court's attention just prior to oral argument. Although the plaintiff has emphasized certain portions of the notice by underlining proposed safety rules for railroads, counsel failed to note the following, also contained in the notice:

" '43 FR 10585 Both courts and the Occupation Safety and Health Review Commission have held that the assertion of authority in a policy statement constitutes an exercise of FRA's statutory authority under the rail safety laws sufficient to...