Templeton v. Chicago and North Western Transp. Co.

• Decision Date: 19 November 1993
• Docket Number: No. 1-90-0312,1-90-0312
• Parties: , 194 Ill.Dec. 945 Tracy TEMPLETON, Plaintiff-Appellee, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 442

628 N.E.2d 442

257 Ill.App.3d 42, 194 Ill.Dec. 945

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.

Nov. 19, 1993.

George H. Brant, Myles L. Tobin, Chicago and North Western Transportation 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 railroad Chicago and North Western Transportation Company (CNW). On January 27, 1984, Templeton was performing track work on a bridge located in Pekin, Illinois, and was severely injured when he fell through an opening in the bridge deck and landed on ice 31 feet below the bridge. Plaintiff filed suit in the circuit court of Cook County pursuant to the Federal Employers' Liability Act (FELA) (45 U.S.C. § 51 et seq. (1988)), to recover damages for the injuries he sustained as a result of the fall. A jury awarded plaintiff damages in the amount of $3.5 million after a reduction of 14% for plaintiff's contributory negligence. ¹

Defendant appealed contending, inter alia, that the trial court improperly admitted into evidence "fall-protection" regulations issued by the Federal Occupational Safety and Health Administration (OSHA) and instructed the jury on the same. In an earlier decision we reversed the decision of the trial court solely on that issue. (See Templeton v. Chicago and North Western Transportation Co. (1991), 211 Ill.App.3d 489, 155 Ill.Dec. 954, 570 N.E.2d 467.) However, the Illinois Supreme Court subsequently reversed the judgment of this court, affirming the decision of the trial court on the OSHA issue, and remanded the matter to this court for consideration of the remaining issues originally raised by defendant's appeal. See Templeton v. Chicago and Northwestern Transportation Co. (1992), 151 Ill.2d 325, 177 Ill.Dec. 371, 603 N.E.2d 441.

The following issues are presently before this court: (1) Whether the trial court erred in permitting plaintiff to introduce evidence of previous employee accidents on other CNW bridges; (2) Whether the trial court erred in failing to order a new trial after it was established that the jury had surreptitiously referred to an economics textbook during their deliberations on damages; (3) Whether the jury's finding that the plaintiff did not fail to mitigate his damages is contrary to the manifest weight of the evidence; and (4) Whether the damage award was excessive.

For the following reasons, we affirm the decision of the trial court.

I.

The trial court denied CNW's motion in limine directed at precluding plaintiff from introducing evidence of other employee falls from other railroad bridges across CNW's multi-state rail system. As a result, plaintiff was allowed to introduce evidence that four other falls had occurred on CNW bridges between 1978 and 1982. In its post-trial motion, defendant alleged that CNW should be granted a new trial because the court erred in denying CNW's motion in limine. Defendant argued that in the present case the plaintiff offered no evidence to demonstrate a similarity between other accidents and that involving the plaintiff and under such circumstances, the prejudicial effect of such evidence far outweighed whatever probative value it otherwise might have had, while also adding an inflammatory element to the proceedings which could only have served to improperly arouse the passions of the jury and contribute to an excessive verdict. Plaintiff maintains that the evidence of prior falls was properly admitted for the limited purpose of establishing CNW's notice of the problem it was facing with regard to bridge falls.

In ruling on the defendant's pre-trial motion, the trial court allowed the admission of the "four situations of people falling from bridges" solely on the issue of notice and specifically noted that it would not allow the four accidents to be used in a "punitive damage situation." Plaintiff's counsel was instructed that the court would not allow him to tell the jury the nature of the injuries suffered in the prior falls as that information was not relevant to the issue of the defendant's notice.

Defendant maintains no evidence was presented that any of these other four accidents involved a fall through an opening in the bridge deck, much less a small temporary opening customarily present throughout a redecking project as in the case at bar. Defendant argues that by failing to require plaintiff to offer evidence demonstrating substantial similarities between the prior accidents and plaintiff's fall, the court thereby allowed plaintiff to invite the jury to find against the railroad based on totally irrelevant evidence of unrelated falls. Plaintiff argues that the similarities defendant claims should have been established before other falls were admitted in evidence are not relevant to the issue of whether the defendant had notice of the problem.

The following is the testimony relevant to the prior falls. Mr. Jerome Iwinski testified that he recently retired from a position as the assistant chief engineer of structures at CNW. In that position he had occasion to promulgate safety rules. When he took over the position the railroad had an engineering policy dealing with bridge safety. He was apprised by his subordinates as to the chronology of events preceding the adoption of rule E-51. He identified a memorandum (Hahn memo) prepared by "Mr. H.D. Hahn, the bridge engineer, giving a chronological listing of activities and letters subsequent to the accident at Bridge 351, Ottawa, Minnesota, in January of 1981." The Hahn memo indicated that in 1981 a B & B carpenter fell off a bridge in Ottawa, Minnesota, and as a result of said accident the railroad was cited by OSHA. The Hahn memo referred to the OSHA citation and the fact that on "February 12th, 1981, General Attorney Ann Valle advised the accident and loss prevention that we were cited by OSHA." At the time Mr. Iwinski reviewed all the material the memo referred to, including the letter from Ann Valle. Over defendant's objection, the letter was admitted into evidence. Mr. Iwinski read the first paragraph of the legal department letter:

"On January 22, 1981, Chicago and North Western Transportation Company was cited by OSHA for not providing safety equipment, that is lifeline, nets, or having adequate railing on bridge No. 351 at mile post 69.64 near Ottawa, Minnesota. This citation was triggered by an employee who fell off this bridge on January 8th, 1981. The transportation company has also been cited recently for not providing safety equipment or railings on a bridge near Boone, Iowa."

Plaintiff's counsel clarified that the aforementioned paragraph referred to not one but two OSHA citations regarding CNW's safety equipment on bridges.

After safety rule E-51 was adopted Mr. Iwinski was asked to do more work in the area of bridge safety. He wrote a memo in response to a request to study what additional steps could be taken to reduce the potential for disabling personal accidents. After reviewing other railroad policies, his conclusion was that the best defense against falls is to constantly remind the men to use extreme caution and vigilance. Mr. Iwinski testified that at the time he wrote said memo, he was not aware that in the previous four years, there had been four falls by CNW employees off of bridges. However, he subsequently stated that he had received a copy of a memo from Mr. Jones which indicated that on four occasions in the past four years, CNW employees fell off of bridges.

On cross-examination, defense counsel asked, "what that person was doing before he or she fell from E-50--or from the bridge in Ottawa, Minnesota." Mr. Iwinski replied that he believed the person was pulling what they call a line spike with a claw bar, and the spike had broke. Mr. Iwinski testified that this did not bear any relation to his understanding of what Templeton was doing at the time of the occurrence as it involved a different procedure. Mr. Iwinski further stated that the bridge in Ottawa, Minnesota, did not have a walkway as the bridge in South Pekin, Illinois, did. On redirect Mr. Iwinski testified that in the Ottawa, Minnesota, accident, the person fell because of a failure of a particular hardware item (the spike broke), and the person was not braced for the resulting accident, whereas in Templeton's case, it was a matter of pulling the hose, nothing broke.

Mr. Jones testified he worked for CNW. He acknowledged receipt of a letter from Ann Valle which referred to a man falling from a bridge and CNW being cited by OSHA as a result of that accident. The letter also talked about a citation on the Boone, Iowa, bridge and requested the recipients of the letter to investigate the matter to determine if there was any effective equipment available for bridge work. As a result of that accident and the letter, Mr. Jones reviewed and assessed the procedures that were in effect at the time. He served on a committee which looked at the existing rules and procedures to determine if there were any deficiencies. As a result of this analysis, the committee came up with E-51. In December of 1982 he was asked by his boss to look into the existing bridge policies. As a result of this request, he wrote a memo which included the information that there had been four falls from bridges in the past four years.

The determination of whether evidence is relevant largely rests within the discretion of the trial court and a reviewing court will not disturb the trial court's ruling unless there has been an abuse of discretion. (First National Bank v. Illinois Central Gulf R.R. Co. (1978), 62...