Balough v. Northeast Illinois Regional Commuter Railroad Corporation ( 2011 )

FOURTH DIVISION
May 19, 2011
No. 1-09-3053
HARRY BALOUGH, )
) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
) Cook County.
v. )
) 06 L 11029
NORTHEAST ILLINOIS REGIONAL )
COMMUTER RAILROAD CORPORATION, ) The Honorable
d/b/a Metra, a corporation, ) Arnette R. Hubbard,
) Judge Presiding.
Defendant-Appellant. )
JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
Presiding Justice Lavin and Justic Salone concurred in the judgment and opinion.
OPINION
Plaintiff, Harry Balough, a locomotive engineer for defendant Northeast Illinois Regional
Commuter Railroad Corporation, d/b/a Metra (Metra), was injured when the latches on a
trapdoor on a Metra train cab car malfunctioned and the trapdoor fell on his head. At the time of
his injury, plaintiff was on his way to move the train car to place it into service on Metra’s
commuter lines. Plaintiff sued Metra under the Federal Employers Liability Act (FELA) (45
U.S.C. §51 et seq. (2000)), for a violation of the Locomotive Inspection Act (LIA) (49 U.S.C.
§20701 et seq. (2000)), and for negligence. The trial court ruled as a matter of law that the train
was “in use” such that the provisions of the LIA applied. The jury returned a verdict in favor of
plaintiff in the amount of $500,000 in compensatory damages and nothing for disability or pain
and suffering. The jury also found plaintiff contributorily negligent and reduced the award by
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40% to $300,000. However, the jury’s answers to special interrogatories indicated it found that
Metra violated the LIA. The trial court entered a judgment notwithstanding the verdict for the
original $500,000 damages award because it found the special findings were inconsistent with
the reduced damages where contributory negligence is not a defense under the LIA. Metra now
appeals.
BACKGROUND
Plaintiff began working for Metra in 1974 as a switchman/brakeman. Plaintiff later
became a locomotive engineer. As a locomotive engineer, plaintiff worked for Metra’s operating
division, the transportation department, as head of a crew at the 18th Street yard. The
transportation department does not provide repair or maintenance services. Instead, Metra’s
mechanical department inspects, repairs, and maintains train cab cars at the 18th Street yard.
Plaintiff’s duties were to coordinate the dispersal of cars after the morning rush hour and
to coordinate the assembly of trains for the evening rush hour. When the morning rush ended,
the cars were dispersed at the 18th Street Yard and the mechanical department employees would
lock down the tracks and use blue flags as signals so they could safely work on the equipment.
The blue flags notified Transportation Department employees that they were not to use the
flagged tracks or move to flagged equipment, in order to avoid injury. All of the inspection and
maintenance work at the 18th Street yard is performed on the tracks, but the yard’s stub track (a
short track connected to other tracks only at one end) is not used for repairs because it is too
close to the main line tracks. When the Mechanical Department workers finished inspecting,
repairing and maintaining locomotives in the 18th Street yard, they would release them to the
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Transportation Department, and plaintiff and his crew would move them into position for the
evening rush. Plaintiff would assemble the cars and then the mechanical department would do
an air test on the brakes. Then a crew would be assigned and the train would go out on the main
line. Besides moving the locomotive cars within the 18th Street yard, plaintiff occasionally had
to transport them on mainline tracks to or from downtown Chicago.
On the afternoon of July 6, 2005, in the 18th Street yard, plaintiff was injured while
boarding locomotive 1579. Car 1579 was on the stub track. Plaintiff was assembling cars for
use in the evening rush hour, and he was on his way to move car 1579 from the stub track to
position it for the evening rush. Though plaintiff could not recall exactly how many cars were
assembled, or were going to be assembled, with car 1579, he was generally preparing to move car
1579 into position for use in the main line rush hour traffic. There were no blue flags on either
the stub track or on car 1579, and the Mechanical Department was not inspecting, repairing or
maintaining it at the time. At the top of the steps up locomotive 1579 was a trapdoor with two
latches. Plaintiff had to climb these steps up into the vehicle in order to move the car into
position for use in the evening rush. When plaintiff climbed up the stairs on locomotive 1579,
the trapdoor was up. There was a vertical bar called a “grab iron” to the right side of the
opening, which plaintiff used to pull himself onto the high first step, approximately 1 1/2 feet
into the car. Plaintiff reached up and gave the trapdoor a horizontal tug pursuant to the railroad’s
rules to make sure the latches held firm and the door seemed latched. However, as plaintiff was
pulling himself up into the locomotive, the trapdoor fell and hit plaintiff on the right side of his
head. Plaintiff went to the hospital and received stitches on his head.
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The day after injury, plaintiff saw one of Metra’s physicians, Dr. Khanna, who released
him to work on July 18, 2005. However, plaintiff began suffering from kaleidoscopic and
blurred vision. While plaintiff was watching a film in preparation to return to work, he
experienced an ocular migraine headache blurring his vision. When plaintiff attempted to return
to work in the 18th Street yard, he suffered an ocular migraine with kaleidoscopic vision. As
plaintiff operated a locomotive that day, his vision became blurry and he put it into an emergency
brake. Plaintiff concluded he could not safely operate locomotives.
Plaintiff had an MRI performed four days later. Plaintiff was examined by two
opthalmologists, Dr. Porakala and Dr. Ticlo. Plaintiff’s treating physician at the time, Dr.
Ponakala, diagnosed these episodes as ocular migraines. Rule 1.6.3 of Metra’s General Code of
Operating Rules (Rules), under which plaintiff is covered as a locomotive engineer, required
plaintiff to immediately report to Metra if he had knowledge that his hearing or vision has
deteriorated and cannot be corrected, so plaintiff reported the problem to Metra. Metra then
ordered plaintiff to see one of its physicians, Dr. Echols, who determined that plaintiff was not
able to continue working as an engineer and took plaintiff out of work on September 18, 2005,
which was plaintiff’s last day of work. Metra made a formal determination on September 25,
2005, that plaintiff’s medical condition disqualified him from working as a locomotive engineer.
Plaintiff subsequently applied for disability benefits from the Railroad Retirement Board, which
ruled he was occupationally disabled.
Plaintiff was also treated by Dr. Mayer, a neurologist, who saw plaintiff between August
12, 2005 to January 11, 2007. Dr. Mayer examined plaintiff every few months after that up to
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the date of trial. Dr. Mayer testified that it was “hard to say” what plaintiff’s prognosis was
regarding his visual disturbances. Ocular migraine headaches are difficult to treat. Dr. Mayer
hoped that they would spontaneously remit over time. However, Dr. Mayer’s medical notes
revealed no significant improvement for plaintiff.
Plaintiff brought a two-count action against Metra in the circuit court. Count I was for
violation of the LIA, pursuant to the FELA. Count II was for negligence under the FELA and
alleged that Metra failed to inspect the cab door to discover the defective door latch, failed to
warn plaintiff of the defective door latch condition, and failed to properly maintain the door
latch.
At trial, Terry Cordray, a licensed vocational rehabilitation counselor, testified as
plaintiff’s vocational expert. Cordray testified that the job of a locomotive engineer is a safety-
sensitive position and that the Federal Railroad Administration has regulations covering physical
requirements for engineers, including standards for good vision. Good visual ability is required
because an engineer has to: (1) look at train signals regarding train movement; and (2) be
observant of the employees that are working on the ground who may give hand signals to
indicate their movement to the engineer. Cordray’s opinion was that plaintiff could no longer be
a locomotive engineer.
Dr. Richard Kraig, a neurologist from the University of Chicago, testified as plaintiff’s
medical expert. Dr. Kraig reviewed plaintiff’s medical records and concluded that plaintiff
suffered from migraine headaches and migraine with aura, caused by the head injury on July 6,
2005. Recurrences of plaintiff’s visual problems were permanent, though a patient could reduce
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the occurrences by controlling environmental factors or with medication. Dr. Kraig’s opinion
was that plaintiff should not drive a locomotive and he would not allow him to drive a
locomotive if plaintiff was under his care.
Plaintiff testified that he checked the trapdoor before attempting to alight the cab car.
Plaintiff reached gave the trapdoor a horizontal tug pursuant to the railroad’s rules and the door
seemed latched. However, when he took the first step the latches failed and the trapdoor fell on
the right side of his head. Plaintiff introduced evidence of his damages from the date he was
determined ineligible to work, September 12, 2005. At the time of trial in July 2009, plaintiff
was 59 years old. He became eligible for a full pension from the Railroad Retirement Board
upon turning 60 years old on May 21, 2010. Plaintiff’s economic expert, Malcolm Cohen,
testified that plaintiff’s pretrial economic losses in the form of lost wages and benefits totaled
$302,308. Adding future economic losses through age 60 if plaintiff retired on May 21, 2010
totaled $509,000. Up to the date of trial, plaintiff was only able to get two jobs: a dog handler,
dispersing geese; and at a golf course cleaning carts, working in the shop and handling
refreshments. He earned only $84,464 from September 12, 2005.
Regarding disability and pain and suffering, plaintiff testified that he spends most of his
days playing with his grandson and performing chores around the house, including yard work and
mowing the lawn. Plaintiff also testified he plays golf every other week during the season and
was jogging every other day. He admitted he occasionally drives even though he no longer held
a driver’s license because of his vision problems.
Over Metra’s objections, four other trapdoor incidents were admitted into evidence. On
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November 3, 2001, conductor Nicholas Chou was struck on the head by a trapdoor with only one
latch. On September 7, 2001, conductor Paul Buckley was struck on the back by a trapdoor with
only one latch. After these incidents, Metra added a second latch to all the trapdoors in 2002.
However, on April 7, 2005, conductor Robert Lindsey was struck on the head by a trapdoor with
two latches in the 18th Street yard. On April 13, 2005, engineer Donnell Cooper was also hit by
a trapdoor with two latches.
Metra presented the testimony of Peter Zwolfer, the superintendent of the Metra electric
district, who was in charge of the 18th Street yard on the date of plaintiff’s injury. Zwolfer
testified that trains in the 18th Street yard are not moving or carrying passengers. One of the last
steps before a train is put into use on Metra’s main line is a Class 2 brake test, which cannot be
done unless all the cars of a train are coupled together. The last tasks performed before a train
goes out on the main line is that a crew is assigned to the train after the mechanical department
and transportation department finish their work, and the Class 2 brake test is performed.
James Derwinski, the shop superintendent of the 18th Street Yard, testified that the 18th
Street yard services Metra’s electric lines, including the South, Blue Island, and Main Line. All
electric line cars are also locomotives, and Metra performs daily inspections of all its electric line
cars as required by the LIA. Derwinski testified that his personnel perform the required daily,
annual, tri-annual and other required inspections of all cars, and that car 1579 was inspected
every day on a daily basis prior to plaintiff’s accident. The trapdoor and its latches were
inspected daily to ensure no spring was broken and the latches latched in both the up and down
positions. Derwinski also testified that after plaintiff’s accident, he inspected the trapdoor and
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the latches and he found no defects. He also found “no defects” noted on the daily inspection
reports on car 1579. Derwinski concluded that the trapdoor had not been properly latched and
that plaintiff failed to follow procedures and comply with Metra’s rules requiring that the trap
door be tested before using it.
During closing arguments, plaintiff’s counsel stated to the jury that he would leave it “up
to [the jury] to decide how much to give [plaintiff] for pain and suffering for the period of time
he has suffered.” Regarding disability, counsel stated: “I would suggest that under the disability
award, that you give more, much more than what his wage loss is.”
Metra moved for judgment as a matter of law on the issue of whether locomotive 1579
was “in use” under the LIA. The trial court ruled that the locomotive was in use when plaintiff
was injured. Based on that ruling, the trial court instructed the jury on the LIA by giving
plaintiff’s instructions 32, 33, 34, and 37. These instructions were discussed during the jury
conference, but the actual instructions are not part of the record before us. Also not part of the
record are the instructions regarding the alternate jury forms and the alternate verdict forms.
Additionally, there is no report of proceedings or bystander report for when the trial court read
the instructions to the jury or explained or discussed the verdict forms and special interrogatories
before the jury.
Only the completed verdict form and the special interrogatories for verdict form A and
verdict form B appear in the record. The jury returned verdict form B, awarding plaintiff
$500,000, without considering the question of reduction of damages due to any negligence of
plaintiff, but reducing his award by 40% for his contributory negligence, resulting in an award of
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$300,000. The special interrogatories submitted to the jury did not indicate whether they were
for verdict form A or verdict form B. The jury answered “Yes” to the following special
interrogatory: “As to Plaintiff Harry Balough’s FELA claim, at the time he was injured, did
METRA use ordinary care to provide him with a reasonably safe place in which to do his work?”
The jury answered “No” to the following special interrogatory: “As to Plaintiff Harry Balough’s
FELA claim, prior to the accident, did METRA have actual or constructive notice that the
trapdoor latch on locomotive car no. 1579 was not reasonably safe?” The jury did not return
Verdict Form A. However, as to the special interrogatory, “Did Metra violate the Locomotive
Inspection Act?,” the jury answered, “Yes.” In response to the special interrogatory, “Did
Metra’s violation of the Locomotive Inspection Act cause or contribute to Plaintiff’s injuries?,”
the jury answered, “Yes.”
The court initially entered judgment on the jury’s verdict and reduced award of $300,000
in damages to plaintiff. However, plaintiff and Metra both filed posttrial motions for judgment
notwithstanding the verdict or a new trial. In its order of October 14, 2009, the court denied
Metra’s motion and granted plaintiff’s motion, in which plaintiff argued that the jury’s answers
to the LIA special interrogatories were inconsistent with, and superseded, its general verdict on
plaintiff’s LIA claim, because under the LIA a reduction in damages for contributory negligence
is not recognized. Thereafter, the court modified the judgment and increased the amount to
$500,000 in favor of plaintiff. Metra thereafter timely appealed the judgment entered on the
verdict and damages award.
ANALYSIS
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Metra argues that the trial court erred in the following: (1) finding the locomotive was
“in use” under the LIA; (2) entering judgment notwithstanding the verdict in favor of plaintiff for
the entire amount of $500,000 because the jury’s answers to the special interrogatories for the
FELA/negligence verdict form were inconsistent with that verdict and the answers to the LIA
verdict form special interrogatories were a nullity; (3) entering the $500,000 award for damages
where it was logically inconsistent with an award of $0 for pain and suffering and $0 for
disability; (4) allowing Dr. Kraig’s expert opinion regarding the permanency of plaintiff’s injury
where Dr. Kraig never personally examined plaintiff and merely reviewed plaintiff’s medical
records; and (5) admitting evidence of the four prior trapdoor incidents on other cars. We
address each argument in turn.
I. Finding of “In Use” Under the Locomotive Inspection Act
Metra first argues that the trial court erred in finding the train car was “in use” under the
LIA. The LIA provides:
“A railroad carrier may use or allow to be used a locomotive or tender on its
railroad line only when the locomotive or tender and its parts and appurtenances –
(1) are in proper condition and safe to operate without unnecessary danger
of personal injury;
(2) have been inspected as required under this chapter [49 U.S.C.S. §§
20701 et seq.] and regulations prescribed by the Secretary of Transportation under
this chapter; and
(3) can withstand every test prescribed by the Secretary under this
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chapter.” 49 U.S.C. §20701.
A violation of the LIA does not give rise to a cause of action but, rather, sets a standard or
rule, the violation of which gives rise to a cause of action under the FELA, and the failure to
comply with that standard is negligence per se under the FELA. Coffey v. Northeast Illinois
Regional Commuter R.R. Corp., 479 F.3d 472 (7th Cir. 2007) (citing Urie v. Thompson, 337 U.S.
163, 188-89 n.30 (1949), McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 298-99 (7th
Cir. 1996), and Lisek v. Norfolk & Western Ry. Co., 30 F.3d 823, 825-26 (7th Cir. 1994)). The
FELA provides railroad employees a cause of action for injuries while employed by the railroad:
“Every common carrier by railroad while engaging in commerce *** shall be
liable in damages to any person suffering injury while he is employed by such carrier in
such commerce ***.” 45 U.S.C. §51.
Generally, a FELA action brought in state court is governed by state procedural law and
federal substantive law. Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d
260, 274 (2002) (citing St. Louis Southwestern Ry. Co. v. Dickerson, 470 U.S. 409, 411 (1985),
Noakes v. National R.R. Passenger Corp., 312 Ill. App. 3d 965, 967 (2000), and Gibbs v. Lewis
& Clark Marine, Inc., 298 Ill. App. 3d 743, 748 (1998)). Thus, we look to federal substantive
law.
As Metra points out, the phrase “in use” on the railroad’s line is not defined in the LIA.
The determination of whether a locomotive was “in use” at the time of the incident is a question
of law. Carder v. Indiana Harbor Belt R.R., 205 F. Supp. 2d 981, 984 (N.D. Ind. 2002) (citing
McGrath v. Consolidated R. Corp., 136 F.3d 838, 842 (1st Cir. 1998), Crockett v. Long Island
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R.R., 65 F.3d 274, 277 (2nd Cir. 1995), Pinkham v. Main Central R.R. Company, 874 F.2d 875,
881 (1st Cir. 1989) Steer v. Burlington Northern, Inc., 720 F.2d 975, 977 n.4 (8th Cir. 1983)
(citing United States v. Thompson, 252 F.2d 6, 9 (8th Cir. 1958)), and Angell v. Chesapeake &
Ohio Ry. Co., 618 F.2d 260, 262 (4th Cir. 1980)).
At the outset, we note that because the “in use” language in the LIA is identical to the
language in the Federal Safety Appliance Act (FSAA) (45 U.S.C. §1 et seq. (1988)), recodified in
1994 as the Federal Railroad Safety Authorization Act (FRSAA) (49 U.S.C. §20302 et seq.
(2000)), federal courts have interchangeably applied case law interpreting the LIA to the FSAA
and FRSAA and the FSAA and FRSAA to the LIA. See Phillips v. CSX Transportation, Inc.,
190 F.3d 285, 288 n.2 (4th Cir. 1999) (citing Deans v. CSX Transportation, Inc., 152 F.3d 326,
329 (4th Cir. 1998), and Trinidad v. Southern Pacific Transportation Co., 949 F.2d 187, 189 (5th
Cir. 1991)); Steer, 720 F.2d at 977 n.3. Further, the LIA, like the FSAA, “is to be liberally
construed in the light of its prime purpose, the protection of employees and others by requiring
the use of safe equipment.” Lilly v. Grand Trunk R. Co., 317 U.S. 481, 486 (1943). Thus, we
may look to federal precedent interpreting “in use” under either act for guidance.
In Brady v. Terminal R.R. Ass’n of St. Louis, 303 U.S. 10 (1938), the Supreme Court held
that a car is “in use” under the FSAA so long as it would continue to its next destination if it
passed inspection. Brady, 303 U.S. at 13. The railroad employee in Brady was injured while
inspecting a car that was one of a string of cars brought by the defendant, Terminal Railroad
Association of St. Louis, from St. Louis to Granite City and placed upon a “receiving” or
“inbound” track of the receiving railroad company. Brady, 303 U.S. at 11. The car was
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temporarily on a receiving track for inspection when he fell from the car after a grab iron came
loose. Brady, 303 U.S. at 11-12. The purpose of the inspection was to determine whether the
cars were to be accepted by the receiving railroad company. Brady, 303 U.S. at 11. The court
found that the car was “in use” within the meaning of section 11 of the FSAA when the employee
inspected it because it was only stationed on the platform temporarily for inspection and “was
still in use, though motionless.” Brady, 303 U.S. at 13. The Court reasoned as follows:
“The car had been brought into the yard at Granite City and placed on a receiving track
temporarily pending the continuance of transportation. If not found to be defective, it
would proceed to destination; if found defective, it would be subject to removal for
repairs. It is not a case where a defective car has reached a place of repair. [Citations.]
The car in this instance had not been withdrawn from use.” Id.We apply the decisions of the federal courts interpreting the meaning of “in use”
subsequent to Brady, with a view toward uniform application of the law. The decisions of the
federal courts interpreting a federal statute such as the FELA are controlling upon Illinois courts
“ ‘in order that the act be given uniform application.’ ” (Internal quotation marks omitted.)
Wilson v. Norfolk & W. Ry. Co., 187 Ill. 2d 369, 374 (1999) (quoting Busch v. Graphic Color
Corp., 169 Ill. 2d 325, 335 (1996), quoting Bowman v. Illinois Central R.R. Co., 11 Ill. 2d 186,
200 (1957)).
Metra relies on two long-standing Seventh Circuit cases: Lyle v. Atchison, T. & S.F. Ry.
Co., 177 F.2d 221 (7th Cir. 1949), cert. denied, 339 U.S. 913 (1950), and Tisneros v. Chicago &
N.W. Ry. Co., 197 F.2d 466 (7th Cir. 1952), cert. denied, 344 U.S. 885 (1952), both of which
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decided the issue of whether a locomotive car was “in use” under the prior Boiler Inspection Act
of 1911 (45 U.S.C.A. §23), which was recodified as the LIA.
In Lyle, the Seventh Circuit held that the locomotive was not in use where, at the time the
plaintiff suffered his injury, the engine had reached the end of its run, the engineer and fireman
had left and the hostler had taken over, moving the engine to the service track and inspection pit
at the roundhouse to be serviced by the plaintiff before it was again put in use. Lyle, 177 F.2d at
222. The plaintiff completed his servicing duties to put the engine in condition for future use on
another run. Id. Whether there was any such subsequent use was not shown by the record. Id.
The Seventh Circuit held:
“Clearly the use of the engine in transportation had for the time being been abandoned; its
use in commerce had come to an end. Its operator had turned it over to the roundhouse
employees, the hostler had taken charge and moved it to the inspection pit at the
round-house and there turned it over to plaintiff whose duty it was to make the service
and to prepare the engine for future further use. *** It is opposed to reality to say that
under such circumstances the locomotive was in use so that the mandatory duty imposed
by the Boiler Inspection Act then applied. To service an engine while it is out of use, to
put it in readiness for use, is the antithesis of using it.” Id. at 222-23.
In Tisneros the Seventh Circuit held the train was not in use at the time of the plaintiff’s
injuries. The plaintiff testified that it was his duty to look over a locomotive placed in a
roundhouse stall, ascertain whether it had fire in the firebox and keep the fire going, if the engine
was to go out on the road again, and, if not, put the fire out. Tisneros, 197 F.2d at 467. About 10
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minutes after the locomotive had been placed in the stall, the plaintiff proceeded to climb the
stairs of the stall. However, the steps were icy and he fell and was severely injured before he
reached a position where he could see the firebox and determine whether there was a fire or not.
Id. The Seventh Circuit held that the locomotive was not in use because:
“[t]he locomotive was, at the time of the accident, not in use on defendant’s line. It had
ended its service trip at the yards and had then been taken to a stall in the round-house,
there to be taken care of by plaintiff, either by building up and maintaining the fire, to
have it in condition for future use, or to put out the fire, if no early return to use was
contemplated.” Id.Metra argues that the result of Lyle and Tisneros obtains in the present case. Plaintiff,
conversely, relies upon a Fourth Circuit case as being dispositive of the issue, Angell v.
Chesapeake & Ohio Ry. Co., 618 F.2d 260 (4th Cir. 1980). In Angell, the plaintiff machinist
injured his left ear when he turned an exhaust valve on the air brakes in uncoupling a locomotive
from another locomotive to move it to nearby tracks. Angell, 618 F.2d at 261. The plaintiff was
going to move the locomotive to a nearby track to be coupled as part of a “consist” of several
locomotives that would depart with a train later that same night. Id. The engine was on the
“service track” and had been “blue flagged,” but “all servicing, maintenance and inspection work
had already been performed.” Id. The Fourth Circuit held that whether a locomotive is “in use”
on a railway system under the LIA is determined by whether the injury was directly caused by
activities in inspecting, repairing or maintaining the locomotive at a maintenance facility.
Angell, 618 F.2d at 262. In Angell, the locomotive was held to be “in use” where the railway had
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“okayed” the locomotive for service, and it was not in further need of any repair. Id. The injury
occurred after inspection, repair and servicing were complete and “during the uncoupling of a
‘readied’ engine in preparation for moving it to a nearby track to pull a train a few hours later.”
Id. The court in Angell noted that “[c]ongressional intent and the case law construing the statute
clearly excludes those injuries directly resulting from the inspection, repair and servicing of
railroad equipment located at a maintenance facility.” Id. (citing H.R. Rep. No. 61-1974 (1911)).
The court in Angell specifically distinguished Tisneros and Lyle:
“The railway cites several cases where an employee, injured while performing services or
repair functions on a locomotive, was denied coverage under the Act. E.g., Tisneros v.
Chicago & Northwestern Railway Co., 197 F.2d 466 (7th Cir. 1952); Lyle v. Atchison,
Topeka & Santa Fe Railway Co., 177 F.2d 221 (7th Cir. 1949); Simpkins v. Baltimore &
Ohio R.R. Co., 449 F. Supp. 613 (S.D.Ohio 1976). These cases are distinguishable from
the present one since here all servicing, maintenance and inspection work had already
been performed and the engine was being moved to its place in the consist.” Angell, 618
F.2d at 261.
The parties dispute whether the Seventh Circuit holdings in Lyle and Tisneros or the
Fourth Circuit holding in Angell is the majority view, and they appear to view these cases as
representing different lines of precedent, or different tests, for determining whether a train is “in
use” under the LIA. However, our review of federal law reveals that they do not represent
different tests but, rather, different results under the same analysis; stated in the vernacular, they
are merely flipsides of the same coin.
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We note that after Angell, the Fourth Circuit refined the analysis and stated which factors
were most important in determining whether a train is “in use” in Deans v. CSX Transportation,
Inc., 152 F.3d 326, 329 (4th Cir. 1988): “to determine whether a train is ‘in use’ for purposes of
the FSAA the primary factors we consider are where the train was located at the time of the
accident and the activity of the injured party.” Deans, 152 F.3d at 329. In Deans, the plaintiff
was releasing handbrakes on vehicles so that the train could depart and was injured when one
vehicle’s handbrake failed to work correctly. Id. at 328. The predeparture inspection was not yet
complete, though the inspection had nothing to do with the handbrake and could have been
completed before the handbrakes were released. The Deans court held the train was in use even
though it had not yet passed predeparture inspection. Id. at 328-29. The court stated that
whether a train is in use depends on all the facts, especially the location of the train and the
activity of the party that led to injury. Id. at 329-30. The court held that the locomotive was in
use because the train “already had its engine coupled to it and was standing on a track in the rail
yard in preparation for imminent departure – not in storage or waiting to be moved into a repair
location.” Id. at 330. The fact that one remaining test had not yet been completed was not
dispositive. Id. at 329.
The Fourth Circuit in Phillips, a case decided under the FSAA, considered all the factors,
the two primary factors being where the train was located and the activity of the injured plaintiff
as enunciated in Deans. Phillips, 190 F.3d at 289 (citing Deans, 152 F.3d at 329). The plaintiff
in Phillips was injured while engaging a rail vehicle’s handbrake during switching operations.
Id. at 286-87. The court stated that “the FSAA does not apply to train cars involved in switching
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operations.” Id. at 289 (citing United States v. Seaboard Air Line R.R. Co., 361 U.S. 78 (1959),
United States v. Northern Pacific Ry. Co., 254 U.S. 251 (1920), and Trinidad, 949 F.2d 187).
However, the holding of Phillips regarding switching operations was based on the Supreme
Court’s holding in Seaboard, where the Court addressed the meaning of the word “train” as used
in the FSAA, and the authorities cited in Seaboard addressed the applicability to certain factual
situations of the air brake requirement to assembled trains under the FSAA. See Robb v.
Burlington Northern & Santa Fe Ry., 100 F. Supp. 2d 867, 869-70 (N.D. Ill. 2000) (discussing
the Fourth Circuit’s holding and reliance on Seaboard in Phillips, and holding that the switching
exclusion from Seaboard does not apply to the FSAA handbrake provision). The LIA does not
distinguish between locomotive cab cars and assembled trains, as the FSAA does. Thus, the
Fourth Circuit did not establish a per se rule that a train involved in switching operations is not in
use under the LIA.
The First Circuit, like the Fourth Circuit, holds that “ ‘[c]ongressional intent and the case
law construing the statute clearly excludes those injuries directly resulting from the inspection,
repair and servicing of railroad equipment located at a maintenance facility.’ ” McGrath v.
Consolidated R. Corp., 136 F.3d 838, 842 (1st Cir. 1998) (quoting Angell, 618 F.2d at 262). The
First Circuit cites the two determinative factors of whether a locomotive is “in use,” which are
(1) the activity of the plaintiff at the time of the injury, and (2) the location of the locomotive at
the time of the injury. McGrath, 136 F.3d at 842. See also Pinkham v. Maine Central R.R. Co.,
874 F.2d 875, 882 (1st Cir. 1989). In McGrath, the court held that the locomotive in question
was in use, as it was not being stored on the yard track or awaiting removal to the engine house
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for repairs but, rather, was running on the yard track and ready to move into service. McGrath,
136 F.3d at 842.
The Second Circuit also follows these basic principles and similarly holds that “
‘[c]ongressional intent and the case law construing the statute clearly exclude those injuries
directly resulting from the inspection, repair, or servicing of railroad equipment located at a
maintenance facility.’ ” Crockett v. Long Island R.R., 65 F.3d 274, 277 (2d Cir. 1995) (quoting
Angell, 618 F.2d at 262). Previously the Second Circuit had explicitly construed the term “in
use” on only one occasion, in Holfester v. Long Island R.R. Co., 360 F.2d 369 (2d Cir. 1966),
where it held a train was in use where it was temporarily taken off the main line for a
“between-run inspection,” but was not removed to a repair or storage track, and the fully-loaded
mail car was inactive for less than three hours. Holfester, 360 F.2d at 372. In Crockett, however,
the train “was inactive on a yard track for roughly eight hours awaiting cleaning, which is hardly
the sort of temporary suspension or delay in service that would warrant a finding of use,” and
thus the court held the train on which the employee was injured was not in use. Crockett, 65
F.3d at 277.
The Third Circuit also follows this precedent. In Raudenbush v. Baltimore & O. R. Co.,
160 F.2d 363 (3d Cir. 1947), a locomotive car was held to be in use under the prior Boiler
Inspection Act where it was in the railroad switchyard, had been temporarily uncoupled from a
string of cars and moved only 15 feet, where it was resting with the expectation that it would
shortly be recoupled to cars. Raudenbush, 160 F.2d at 368. Although our research has not
revealed any recent Third Circuit decisions on the issue, courts within the Third Circuit follow
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the rule of Angell and Deans. See, e.g., Dougherty v. CSX Transportation Inc., 14 Pa. D. & C.
5th 284 (2010) (relying on Angell, Deans and McGrath in holding that the locomotive was “in
use” where it was in the yard preparing to pull rail cars in interstate commerce).
The Fifth Circuit, in contrast, has adopted a bright-line inspection and release test,
holding that a train is not in use until it is assembled and its inspection is complete and the train
has been released. Trinidad, 949 F.2d at 189. The court in Trinidad held that the train was not
in use because, at the time of the accident, the train was assembled but the inspection was not yet
complete and the train was not released. Trinidad, 949 F.2d at 189.
The Sixth Circuit has not addressed the definition of “in use” under the LIA, but a district
court has held that the “multi-factor approach better tracks the goals of the statutory scheme than
the overly restrictive Trinidad approach and better comports with the requisite liberal
construction the Court must accord such a statutory scheme.” Hinkle v. Norfolk Southern Ry.
Co., No. 2:05-CV-574, 2006 WL 3783521, at *3 (S.D. Ohio Dec. 21, 2006). However, the
Hinkle court held that “the factors cited as most important by Deans and Phillips, the activity of
the party when he was injured and the location of the train or vehicle,” while important factors,
“must be considered in the context of the use of a vehicle, not the use of a train,” because those
cases determined only whether an entire train was in use, and not a component vehicle. Hinkle,
2006 WL 3783521, at *6.
The Eighth Circuit, in making “in use” determinations under the LIA, follows the holding
of the Fourth Circuit in Deans and refers to the analysis as a “totality of the circumstances” test.
See Wright v. Arkansas & Missouri R.R. Co., 574 F.3d 612, 620-21 (8th Cir. 2009) (citing
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Deans, 152 F.3d at 329 (holding that determination of whether a train is “in use” is to be made
based upon the “totality of circumstances at the time of the injury”)).
Courts in the Ninth Circuit also apparently follow the majority rule. In Haworth v.
Burlington Northern & Santa Fe Ry. Co., 281 F. Supp. 2d 1207, 1212 (E.D. Wash. 2003), the
district court held that a train was in use for purposes of the LIA. The fact that predeparture
inspection was not conducted at the time of the plaintiff’s injury was without merit, as the train
was in its final predeparture stages, being neither serviced nor repaired, and the court followed
the majority rule, rejecting the minority view of the Fifth Circuit in Trinidad. Haworth, 281 F.
Supp. 2d at 1212.
The Tenth Circuit states the test somewhat differently, though it apparently looks to the
same factors in making “in use” determinations under the LIA. In Estes v. Southern Pacific
Transportation Co., 598 F.2d 1195 (10th Cir. 1979), it held “ ‘used on its line’ in the statute was
intended to mean used in moving interstate or foreign traffic.” Estes, 598 F.2d at 1198. The
plaintiff was a hostler assigned to move the locomotive from a “roundhouse” area, a service track
where engines are fueled, sanded, and given light maintenance. Estes, 598 F.2d at 1196. The
Tenth Circuit cited to Lyle and Tisneros, where the locomotives were also in a roundhouse, and
held that a locomotive in a roundhouse is not moving interstate traffic. Estes, 598 F.2d at 1198-
99.
District courts in the Eleventh Circuit also follow the majority rule. See Hamilton v. CSX
Transportation, Inc., No. CV504-12, 2006 WL 1992369 at *5 (S.D. Ga. July 14, 2006) (quoting
Pinkham, 874 F.2d at 881 for the proposition that it is “ ‘well-established that locomotives being
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serviced in a place of repair are not “in use” ’ ”).
The Supreme Court has not revisited the definition of “in use” since Brady and the
Seventh Circuit has not addressed the definition of “in use” under the LIA since Tisneros.
However, although plaintiff and Metra treat the Lyle/Tisneros holdings of the Seventh Circuit
and the Fourth Circuit’s holding in Angell as opposing majority and minority views, it is apparent
that these cases are all part of the majority view applying a multifactor analysis. We find our
review of the holdings of the federal courts shows that most circuits follow the basic holdings of
Lyle/Tisneros and Angell and apply a multifactor analysis, including the following factors: where
the train was located at the time of the accident; the activity of the injured party; whether it is on
a track in the rail yard prepared for departure or in the roundhouse for repair; whether it is being
moved to a repair location or to a track for departure; and whether servicing and maintenance
work have already been performed. Indeed, the court in Angell merely distinguished Lyle and
Tisneros factually; it did not employ a different analysis. See Angell, 618 F.2d at 261. Only the
Fifth Circuit developed its own minority bright-line test.
District courts in the Seventh Circuit have applied Angell. See, e.g., Zanden v. Norfolk &
Western Ry. Co., No. 93-C-4272, 1996 U.S. Dist. LEXIS 17848, at *7 (N.D. Ill. Nov. 26, 1996)
(citing Angell, 618 F.2d at 262, for the proposition that courts have held that a locomotive may
still be considered in use even if off the main line and stationary); Carder v. Indiana Harbor Belt
R.R., 205 F. Supp. 2d 981, 984 (N.D. Ind. 2002) (citing Angell, 618 F.2d at 262, for the
proposition that the LIA may provide a remedy even though the train is not actually engaged in
moving interstate commerce); Underhill v. CSX Transportation, Inc., No. 1:05-CV-196-TS, 2006
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U.S. Dist. LEXIS 22685, at *17-18 (N.D. Ind. Apr. 24, 2006) (“ ‘The intent of the statute is to
exclude from its coverage only such functions as are necessary to detect and correct those
defective conditions for which absolute liability will be imposed.’ ” (quoting Angell, 618 F.2d at
262)).
Our state appellate court also recognizes Angell as precedent in determining whether a
train is in use under the LIA. In Edwards v. Alton & Southern Ry. Co., 275 Ill. App. 3d 529(1995), the appellate court affirmed the trial court’s judgment, directing a verdict in the plaintiff
machinist’s favor on his count under the Boiler Inspection Act (the precursor to the LIA). In
Edwards, the plaintiff was a machinist for the defendant railroad company whose job was to
inspect locomotives at the “pit” where inspections, fueling, sanding, and small repairs are done
on locomotives. Edwards, 275 Ill. App. 3d at 530. The plaintiff was splitting a four-engine
group into a two-engine group. Edwards, 275 Ill. App. 3d at 530. He had completed his
inspection, and the track was not blue-flagged. Edwards, 275 Ill. App. 3d at 530. The court
relied on Angell in its analysis in finding that the train was in use. Edwards, 275 Ill. App. 3d at
536-37.
Metra argues the following evidence shows that cab car 1579 was not “in use”: (1) the car
was not out on the main line picking up and dropping off passengers when the accident occurred
but, rather, was standing on stub track number 4 in Metra’s 18th Street yard awaiting a call or
request to be placed in use on the commuter lines; (2) no crew had been assigned to the car to
operate it on the main line; (3) no train had been assembled; (4) no air-brake test had been
conducted, which is the last step before an assembled train leaves the maintenance yard and goes
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out on the main line; (4) plaintiff was a “hostler engineer” moving, assembling and
disassembling trains in the maintenance yard and not a “mainline engineer” operating trains out
on the main line; (5) plaintiff was not taking the cab car out onto the main line and did not know
exactly what he planned to do when he climbed into the cab car; and (6) the cab was not part of a
scheduled train, nor was its departure imminent. Metra argues that there is no evidence to
support plaintiff’s assertion that at the time he was injured he was readying the cab car in
question to be placed in use for the evening rush hour. According to Metra, at most, plaintiff
testified that he generally was performing switching and putting trains together for the rush hour
assembly.
However, to find a train “in use” there is no requirement that: (1) the car be on the main
line actually picking up and dropping off passengers; (2) a crew be assigned; (3) the train be
completely assembled; (4) an air-brake test be completed; (5) a plaintiff be only a “mainline
engineer”; and (6) the cab be part of a scheduled train with an imminent departure. All the
factors of the surrounding circumstances are analyzed to determine whether a locomotive is “in
use,” particularly the location of the locomotive and the action of the plaintiff at the time of
injury. The weight of authority holds that if a train is stationary in a roundhouse waiting for or
undergoing service and repair, the train is not in use. See Lyle, 177 F.2d at 222; Tisneros, 197
F.2d at 467; Estes, 598 F.2d at 1198-99; Crockett, 65 F.3d at 277. However, if the train or car
has been serviced and is being moved or is ready to be moved to the main line it is in use, even if
not all inspections have been completed. See Angell, 618 F.2d at 261; Deans, 152 F.3d at 328;
Wright, 574 F.3d at 620-21; McGrath, 136 F.3d at 842; Holfester, 360 F.2d at 372. No single
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factor, by itself, has been held to be dispositive.1
Although Metra points out that the car was not part of an assembled train, this fact is
more of a factor under the FSAA, and has not been a predominant factor in the analysis under the
LIA. Although many cases under the FSAA or FRSAA and the LIA look to cases under both
statutes for interpretation, we note that the FSAA and FRSAA sets forth a distinction between
component cab cars and assembled whole trains, while the LIA does not. “The FSAA sets out
safety requirements for rail ‘vehicles’ and separate requirements for ‘trains,’ that is, a line of
vehicles connected behind a locomotive.” Underhill, 2006 U.S. Dist. LEXIS 22685 at *10. A
railroad carrier is allowed to use a “vehicle” on its lines only if it is properly equipped and
secured as specified in the FRSAA. 49 U.S.C. § 20302(a)(1) through (a)(3). There is a separate
provision that a railroad carrier is allowed to use a “train” on its lines only if there are a sufficient
number of vehicles equipped with power or train brakes. 49 U.S.C. §20302(a)(5) (2000). This
distinction in the FSAA between vehicles and trains was noted by the Supreme Court in United
States v. Erie R.R. Co., 237 U.S. 402, 407-08 (1915) (“a train in the sense intended consists of an
engine and cars which have been assembled and coupled together for a run or trip along the
road”). Under the FSAA, there are separate “in use” inquiries depending on whether the usage of
a vehicle, locomotive, or train is at issue. Underhill, 2006 U.S. Dist. LEXIS 22685, at *11. In
Hardlannert v. Illinois Central R.R. Co., 401 Ill. App. 3d 405 (2010), we discussed Phillips and
the distinction between railcars and trains and held that individual railcars are “in use” during
1
The only exception is the Fifth Circuit, which established its own bright-line inspection
and release test.
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switching operations under the FSAA, but trains are not. Hardlannert, 401 Ill. App. 3d at 414-
15.
In contrast, the LIA only applies to a “locomotive” and its “parts and appurtenances,” and
makes no such distinction between vehicles and trains. See 49 U.S.C. § 20701 (2000). Thus,
Metra’s reliance on the fact that the car was not part of an assembled train is somewhat
misplaced. Angell is on point, as it was decided under the LIA, and there switching operations
did not preclude a finding that the train was in use. Similar to Angell, in the case below plaintiff
was assembling cars. The fact that plaintiff was moving a cab car to be put into use is not a
factor weighing against a finding that it was in use.
Contrary to Metra’s assertions, our review of the record reveals that in this case plaintiff
was unequivocally preparing car 1579 to be placed in use. Plaintiff’s testimony at trial was as
follows:
“Q. So July 6th, 2005, car 1579, correct?
A. I believe.
Q. What happened?
A. Well, the accident happened in the afternoon ***. *** [W]e got done with all
our switching, and the Mechanical Department was releasing cars to us, releasing trains to
us.
We’re still building up – finishing our building up of the afternoon rush hour.
And I went out to the stub track to get on the equipment that was there to take those cars
and put it in position for the afternoon rush hour. I never made it. I got injured on the
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way to accomplish that.
Q. Let me just ask you, was there any blue flags [sic] on that car on the stub track
on the 1579?
A. No, no.
Q. Had that car been – was the Mechanical Department either servicing it,
inspecting it or maintaining it at the time you were trying to alight it and were injured?
A. No.
Q. What was that car doing sitting there? What were you going to do with that
car?
A. I was going to put that in service. I was going to put that on a train.”
Thus, the Mechanical Department was releasing trains and plaintiff was on his way to put
car 1579 on a train to be placed in use. Also, although Metra consistently refers to plaintiff as a
“hostler,”2 apparently in an attempt to portray plaintiff’s job as consisting of moving trains to
service areas, plaintiff’s testimony at trial that his position was locomotive engineer and that his
duty was to place trains for use on the commuter lines was unrebutted by Metra. There were no
blue flags on car 1579 and the car was not going to being moved to a service area but to a
commuter line. The Mechanical Department was releasing trains and plaintiff was on his way to
put car 1579 on a train for use on the commuter lines. Under our de novo review, we find the
train was “in use” under the LIA under the facts of this case. Therefore, the trial court did not err
2
A “hostler” is defined in Webster’s Third New International Dictionary 1094 (1971) as
“one who takes charge of a railroad locomotive after a run: one who moves and services
locomotives in enginehouse or roundhouse territory.”
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in finding that the car was in use.
II. Judgment Notwithstanding the Verdict
Metra next argues that the trial court erred in entering judgment notwithstanding the
verdict in favor of plaintiff for the entire amount of $500,000. It is well settled that judgment
notwithstanding the verdict should be granted only when “all of the evidence, when viewed in its
aspect most favorable to the opponent, so overwhelmingly favors [a] movant that no contrary
verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.
2d 494, 510, 229 N.E.2d 504, 513 (1967). Because the standard for entry of judgment
notwithstanding the verdict “ ‘is a high one’ [citation], judgment n.o.v. is inappropriate if
‘reasonable minds might differ as to inferences or conclusions to be drawn from the facts
presented.’ [Citation.]” York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147,
178, 854 N.E.2d 635, 652 (2006). A decision on a motion for judgment notwithstanding the
verdict is subject to de novo review by this court. McClure v. Owens Corning Fiberglas Corp.,
188 Ill. 2d 102, 132, 720 N.E.2d 242, 257 (1999).
Metra argues that the court erred in entering judgment notwithstanding the verdict
because the jury’s answers to the special interrogatories for the FELA/negligence verdict form
were inconsistent with that verdict and the answers to the LIA verdict form special
interrogatories were a nullity because the jury did not return an LIA verdict. We begin our
analysis by recognizing that the purpose of special interrogatories is to test a general verdict
against the jury’s determination as to one or more specific issues of ultimate fact. Northern Trust
Co. v. University of Chicago Hospitals & Clinics, 355 Ill. App. 3d 230, 251 (2004). Upon the
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request of a party, the trial court has no discretion but to submit a special interrogatory to the
jury, as long as it is in proper form. Northern Trust Co., 355 Ill. App. 3d at 251. A special
interrogatory is in proper form if (1) it relates to an ultimate issue of fact upon which the rights of
the parties depend, and (2) an answer responsive thereto is inconsistent with some general verdict
that might be returned. Simmons v. Garces, 198 Ill. 2d 541, 555 (2002). “[A] proper special
interrogatory consists of a single, direct question that, standing on its own, is dispositive of an
issue in the case such that it would, independently, control the verdict with respect thereto.”
Northern Trust Co., 355 Ill. App. 3d at 251. Section 2-1108 of the Illinois Code of Civil
Procedure governs special interrogatories and provides that “[w]hen the special finding of fact is
inconsistent with the general verdict, the former controls the latter and the court may enter
judgment accordingly.” 735 ILCS 5/2-1108 (West 2008).
In determining whether an inconsistency exists, all reasonable presumptions must be
exercised in favor of the general verdict. Simmons, 198 Ill. 2d at 556. An inconsistency exists
where the special finding and the general verdict are “ ‘clearly and absolutely irreconcilable.’ ”
Simmons, 198 Ill. 2d at 556 (quoting Powell v. State Farm Fire & Casualty Co., 243 Ill. App. 3d
577, 581 (1993)). “Where the court finds the answer to the special interrogatory absolutely
irreconcilable with the verdict, and if the answer to the special finding is not against the manifest
weight of the evidence, the special finding controls, and a judgment may be entered based on the
special finding rather than on the general verdict.” Ahmed v. Pickwick Place Owners’ Ass’n, 385
Ill. App. 3d 874, 885 (2008) (citing 735 ILCS 5/2-1108 (West 2006), and State Farm Fire &
Casualty Co. v. Miller Electric Co., 204 Ill. App. 3d 52, 60 (1990)). “Our supreme court has
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explained that the reason underlying this rule is based upon a recognition that ‘a jury more clearly
understands a particularized special interrogatory than a [general verdict, which is] a composite
of all the questions in a case.’ ” Ahmed, 385 Ill. App. 3d at 885 (quoting Borries v. Z. Frank,
Inc., 37 Ill. 2d 263, 266 (1967)). We review the trial court’s finding of inconsistency de novo.
Ahmed, 385 Ill. App. 3d at 885 (citing Simmons, 198 Ill. 2d at 556, and DiMarco v. City of
Chicago, 278 Ill. App. 3d 318, 325 (1996) (applying a de novo standard of review)).
Before we determine whether an inconsistency exists by comparing the special findings to
the general verdict, we must address Metra’s contention that a general verdict was not returned in
this case. Metra insists that verdict form B was a special verdict form intended only for the
FELA/negligence claim and verdict form A (not returned by the jury) was the LIA verdict form,
and thus there was no general verdict. However, there is nothing in the record to support Metra’s
argument. Plaintiff correctly maintains that a general verdict was returned in this case. The
verdict form itself is titled only “VERDICT FORM B” and states generally: “We, the jury, find
for Plaintiff, Harry Balough, and against Defendant, Metra.” A trial court must direct a separate
verdict only if there are several counts in a complaint that are based on different claims, and not
where there are several counts or alternate theories of recovery based on the same claim. See 735
ILCS 5/2-1201(c) (West 2008). In this case, both the FELA negligence count and the LIA count
were based on the same claim or transaction. Therefore, even had there been separate special
verdict forms, as plaintiff points out, they would have been inappropriate. See Gausselin v.
Commonwealth Edison Co., 260 Ill. App. 3d 1068, 1077 (1994) (citing Ill. Ann. Stat., ch. 110,
par. 2-1201, Joint Committee Comments, at 4 (Smith-Hurd 1983), and holding separate verdict
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forms are appropriate only when the plaintiff alleges separate causes of action based on separate
transactions or occurrences). Where several grounds of recovery are pleaded in support of the
same claim, as here, a general verdict is appropriate. See 735 ILCS 5/2-1201(d) (West 2008).
Thus, contrary to Metra’s contention, we are merely presented with special findings
accompanying a general verdict, and not a special verdict.
As such, we compare the special findings to the general verdict. We find the answers to
the special interrogatories regarding liability under the LIA were inconsistent with the reduction
in damages award for contributory negligence in the general verdict, as contributory negligence is
not a defense under the LIA. 49 U.S.C. § 20701; Lilly v. Grand Trunk Western R. Co., 317 U.S.
481, 491 (1943) (holding that the partial defenses of contributory negligence and assumption of
risk are not available to the employer under FELA for a violation of the Boiler Inspection Act
(the precursor to the LIA)). Thus, the jury’s special findings concluding that Metra violated the
LIA control, and the trial court properly amended the amount of damages to the original damages
award amount with no reduction for contributory negligence.
Moreover, because Metra failed to present an adequate record, we must presume the trial
court’s determination was correct. Metra failed to include in the record the following: the jury
instructions on the LIA; instructions regarding the two different general verdict forms; the
alternative verdict form A; a transcript or bystander’s report of any discussion during the jury
conference regarding the special interrogatories; and a transcript or bystander’s report of any
explanation or discussion by the court regarding the special interrogatories and verdict forms
before the jury. In the absence of a more complete record regarding the basis for the court’s
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order denying defendant’s motion, we must presume that the court’s action “was in conformity
with the law and was properly supported by evidence,” and that any doubts arising from an
incomplete record should be resolved against the appellant. Foutch v. O’Bryant, 99 Ill. 2d 389,
393 (1984). “ ‘Any doubts arising from the inadequacy of the record will be resolved against the
defendant.’ ” Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 155 (2005) (quoting Weaver v.
Midwest Towing, Inc., 116 Ill. 2d 279, 285 (1987), citing Foutch, 99 Ill. 2d at 391-92). “While
we may consider the issues raised by defendants by reference to the common law record
[citation], any doubts raised by insufficiencies in the record must be resolved against defendants
who had the obligation to present this court with a sufficiently complete record of the trial court
proceedings to support their claims of error [Foutch, 99 Ill. 2d at 391-92].” Williams v. Dorsey,
273 Ill. App. 3d 893, 896-97 (1995). “[A]s the appellant, defendant has the burden of showing
error; any doubt arising from incompleteness of the record will be resolved against the
appellant.” People v. Kirkpatrick, 240 Ill. App. 3d 401, 406 (1992).
We note that Metra offers no explanation for its failure to include a report of proceedings
of the trial court’s reading of the instructions to the jury or of any explanation or discussion of the
special interrogatories and verdict forms before the jury. “An issue relating to a circuit court’s
factual findings and basis for its legal conclusions obviously cannot be reviewed absent a report
or record of the proceeding.” Corral, 217 Ill. 2d at 156, 839 N.E.2d at 532 (citing Webster v.
Hartman, 195 Ill. 2d 426, 432 (2001) (“Where the issue on appeal relates to the conduct of a
hearing or proceeding, this issue is not subject to review absent a report or record of the
proceeding.”)). “Where the record is incomplete, the reviewing court will indulge every
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reasonable presumption favorable to the judgment, order, or ruling from which the appeal is
taken.” (Internal quotation marks omitted.) In re Marriage of Cepek, 230 Ill. App. 3d 1045,
1046 (1992). Moreover, “it will be presumed that the trial court heard sufficient evidence and
argument to support its decision. [Citation].” (Internal quotation marks omitted.) In re
Marriage of Cepek, 230 Ill. App. 3d at 1046. Accordingly, given the lack of transcripts as well,
we presume that the circuit court’s determination complied with the law and was supported by
evidence.
Here, the entry of judgment notwithstanding the verdict increasing the award to $500,000
was appropriate where it was clear that the jury’s answers to the LIA special interrogatories were
inconsistent with the general verdict and award of damages reduced by contributory negligence.
Therefore, we affirm the entry of judgment notwithstanding the verdict against Metra on
plaintiff’s LIA claim and the amount of damages, as under the LIA there is no reduction for
contributory negligence.
III. Compensatory Damages Award
Metra next contends that the damages award of $500,000 in compensatory damages must
be set aside because it was logically inconsistent with an award of $0 for pain and suffering and
$0 for disability. Plaintiff argues the jury was justified in concluding that he proved economic
losses but failed to establish any other categories of damages by a preponderance of the evidence
or, alternatively, if the jury’s determination was error, it was invited error because plaintiff’s
counsel remarked in closing arguments that the jurors give whatever they wanted for other
damages. Plaintiff also argues that Metra does not have standing to ask for a new trial based on
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the jury’s failure to award additional damages for pain and suffering and disability because Metra
was not prejudiced.
Though Metra does not specify the relief it seeks, other than we “set aside” the verdict
amount of $500,000, plaintiff’s posttrial motion requested either a judgment notwithstanding the
verdict or a new trial. As noted earlier, the substantive law in an FELA action brought in state
court is governed by federal law, but state court FELA actions are subject to state procedural
rules. Schultz, 201 Ill. 2d at 274; St. Louis Southwestern Ry. Co. v. Dickerson, 470 U.S. 409, 411
(1985); Gibbs, 298 Ill. App. 3d at 748. The measure of damages in an FELA case3 is an issue of
“substance” determined by federal law. Norfolk & Western Ry. Co. v. Liepelt, 444 U.S. 490, 493
(1980). See also Monessen Southwestern R. Co. v. Morgan, 486 U.S. 330, 335 (1988) (holding
“the proper measure of damages [under the FELA] is inseparably connected with the right of
action, and therefore is an issue of substance” (internal quotation marks ommitted)); Templeton
v. Chicago & Northwestern Transportation Co., 257 Ill. App. 3d 42, 54 (1993) (“Federal law
must be followed in construing [a] plaintiff’s entitlement to damages in a FELA case.” (citing
Brown v. Chicago & North Western Transportation Co., 162 Ill. App. 3d 926, 931-32 (1987))) .
Thus, we determine whether substantive federal law under FELA requires an award of pain and
suffering or holds that a failure to award such damages where compensatory damages are
3
Although Metra draws a distinction between the FELA/negligence claim and an LIA
claim in its argument concerning the verdict forms, as we noted a violation of the LIA does not
give rise to a cause of action under that statute but, rather, gives rise to a cause of action under
the FELA. Coffey 479 F.3d at 477 (citing Urie, 337 U.S. at 188-89 n.30, McGinn, 102 F.3d at
298-99, and Lisek, 30 F.3d at 825-26). Thus, the damages awarded are damages under the
FELA.
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awarded is reversible error under the FELA. However, we determine whether Metra satisfied the
standard for a judgment notwithstanding the verdict or a new trial under Illinois procedural law.
Substantively, “in FELA cases [the Supreme Court] has repeatedly held that where ‘there
is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever
facts are inconsistent with its conclusion.’ ” Dennis v. Denver & Rio Grande Western R. Co.,
375 U.S. 208, 210 (1963) (per curiam) (quoting Lavender v. Kurn, 327 U.S. 645, 653 (1946)). “
‘Only when there is a complete absence of probative facts to support the conclusion reached [by
the jury] does a reversible error appear.’ ” Dennis, 375 U.S. at 210 (quoting Lavender, 327 U.S.
at 653).
Federal courts have rejected similar challenges by defendant railroads to jury verdicts not
awarding damages for pain and suffering. The court in Manes v. Metro-North Commuter R.R.,
801 F. Supp. 954 (D. Conn. 1992), aff’d, 990 F.2d 622 (2d Cir. 1993), held the defendant
railroad was not entitled to a new trial where the railroad employee was awarded over $1 million
in lost earnings and medical expenses but no damages for pain and suffering, loss of enjoyment
of life, or fear of future. The court ultimately concluded that the waiver rule applied and
precluded the railroad from receiving a new trial based on verdict inconsistency because the
defendant railroad did not timely raise the issue so that it could have been resubmitted to the jury
to cure its purportedly inconsistent verdict. Manes, 801 F. Supp. at 960-61. However, the court
stated that it “fail[ed] to comprehend how the Railroad, the defendant in this case, is in any way
harmed by the jury’s failure to award additional damages for pain and suffering to the plaintiff.”
(Emphasis in original.) Manes, 801 F. Supp. at 958. Further, the court observed, it was “not
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aware of any case, nor has the Railroad cited such a case, in which a dissatisfied defendant
successfully challenged a jury verdict as legally defective for its failure to award a plaintiff
damages for pain and suffering.” Id. The court held that the award was not necessarily
inconsistent, since the jury’s decision not to award pain and suffering was clearly within scope of
evidence presented, in light of the conflicting expert testimony about the degree of the plaintiff’s
injury and its obscure psychological manifestations, and thus it was “entirely reasonable and
consistent for the jury to conclude that such an injury was compensable for past and future
medical expenses and lost wages but not for pain and suffering.” Manes, 801 F. Supp. at 962.
The Eighth Circuit also rejected a similar challenge by a defendant railroad to a jury
verdict not awarding such damages under FELA because “any prejudice resulting from an
inconsistent verdict or the entry of judgment thereon lies solely with the plaintiff who did not
raise the issue below, and has not appealed the judgment.” Lockard v. Missouri Pacific R.R. Co.,
894 F.2d 299, 305 (8th Cir. 1990), cert. denied, 498 U.S. 847 (1990).
Thus, there is no substantive federal rule requiring an award of damages for pain and
suffering where other damages are awarded, or holding that the failure to award such damages is
reversible under the FELA. Metra has not cited any authority for overturning a verdict under the
FELA based upon an alleged inconsistency for failure to award damages for pain and suffering,
nor does our research reveal any.
Procedurally, as noted previously, a judgment notwithstanding the verdict should be
granted only when “all of the evidence, when viewed in its aspect most favorable to the
opponent, so overwhelmingly favors [a] movant that no contrary verdict based on that evidence
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could ever stand” (Pedrick, 37 Ill. 2d at 510), and the trial court’s decision on a motion for
judgment notwithstanding the verdict is subject to de novo review. McClure, 188 Ill. 2d at 132.
Alternatively, a new trial should be granted only when the verdict is contrary to the
manifest weight of the evidence. York, 222 Ill. 2d at 178-79. That standard is met only when the
opposite conclusion is clearly evident or when the jury’s findings prove to be unreasonable,
arbitrary and not based upon any of the evidence. York, 222 Ill. 2d at 179 (citing McClure, 188
Ill. 2d at 132). “It is well established that, in an appeal from a jury verdict, a reviewing court may
not simply reweigh the evidence and substitute its judgment for that of the jury.” Snelson v.
Kamm, 204 Ill. 2d 1, 35 (2003). The determination of damages is a question of fact, not law, and
is within the discretion of the jury, not the court. Poliszczuk v. Winkler, 387 Ill. App. 3d 474, 490
(2008) (citing Snover v. McGraw, 172 Ill. 2d 438, 447 (1996)). The reversal per se rule with
regard to charges of internally inconsistent jury verdicts has been rejected in Illinois. Poliszczuk,
387 Ill. App. 3d at 491 (citing Snover, 172 Ill. 2d at 448). A jury’s award of damages is entitled
to substantial deference by the court and a trial court can upset a jury’s award of damages only if
it finds that: (1) the jury ignored a proven element of damages; (2) the verdict resulted from
passion or prejudice; or (3) the award bore no reasonable relationship to the loss sustained.
Stamp v. Sylvan, 391 Ill. App. 3d 117, 123-24 (2009) (citing Snover, 172 Ill. 2d at 447). We
“exercise[] all reasonable presumptions in favor of the verdict, and the verdict is not legally
inconsistent unless it is absolutely irreconcilable.” Tedeschi v. Burlington Northern R.R. Co.,
282 Ill. App. 3d 445, 448-49 (1996). A court of review will not reverse a circuit court’s decision
with respect to a motion for a new trial unless it finds that the circuit court abused its discretion.
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Maple v. Gustafson, 151 Ill. 2d 445, 455 (1992).
Generally, a failure by the jury to award damages for pain and suffering is not necessarily
inconsistent with an award in other damage categories. Knight v. Lord, 271 Ill. App. 3d 581, 591
(1995) (citing Griffin v. Rogers, 177 Ill. App. 3d 690 (1988), Perry v. Storzbach, 206 Ill. App. 3d
1065 (1990), Buttita v. Stenberg, 246 Ill. App. 3d 1012 (1993), and Craigmiles v. Egan, 248 Ill.
App. 3d 911 (1993)). As this court has recognized, “the fact that the jury chose to award no
money for disability and for loss of normal life, while awarding money for medical expenses and
pain and suffering, is not proof, by itself, that the jury ‘ignored’ that element.” Poliszczuk, 387
Ill. App. 3d at 491 (quoting White v. Lueth, 283 Ill. App. 3d 714, 718 (1996)). In Snover, our
supreme court held that a jury may award pain-related medical expenses and may also determine
that the evidence of pain and suffering was insufficient to support a jury award. Snover, 172 Ill.
2d at 448. “[A] jury may award pain-related medical expenses and, at the same time, may also
determine that the evidence of pain and suffering was insufficient to support a monetary award.”
Zuder v. Gibson, 288 Ill. App. 3d 329, 334 (1997) (citing Snover, 172 Ill. 2d at 448). “ ‘Where
evidence is contradicted, or where it is merely based on the subjective testimony of the plaintiff,
a jury is free to disbelieve it.’ ” Poliszczuk, 387 Ill. App. 3d at 492 (quoting Stift v. Lizzadro, 362
Ill. App. 3d 1019, 1029 (2005), citing Snover, 172 Ill. 2d at 449). “The verdict cannot be
considered irreconcilably inconsistent if any reasonable hypothesis supports the verdict.”
Tedeschi, 282 Ill. App. 3d at 449. This determination is best made in a posttrial motion, and the
trial court’s ruling as to a new trial on this issue will not be reversed unless the court abuses its
discretion. Snover, 172 Ill.2d at 449.
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In the case below, the jury’s finding that pain and suffering damages were not justified
was within the range of the evidence presented and was not unreasonable and arbitrary. There
was not much evidence of pain and suffering in this case. As plaintiff himself testified, he did
garden work and was able to play with his grandson and play golf. Further, as plaintiff himself
points out, given the evidence plaintiff’s counsel did not strenuously argue for damages for pain
and suffering. During closing arguments, plaintiff’s counsel merely stated he would leave it “up
to [the jury] to decide how much to give [plaintiff] for pain and suffering for the period of time
he has suffered.” Regarding disability, plaintiff’s counsel stated, “I would suggest that under the
disability award, that you give more, much more than what his wage loss is,” but did not point to
any strong evidence in support of disability. Thus, the jury could have concluded that plaintiff’s
own testimony was insufficient to establish a basis for an award for disability or pain and
suffering though he established compensatory damages, and such a conclusion was not
inconsistent.
We thus conclude Metra has failed to demonstrate that the evidence so overwhelmingly
favored it that no contrary verdict based on the evidence could ever stand, and so fails to satisfy
the burden for entry of judgment notwithstanding the verdict. We also conclude the trial court
did not abuse its discretion in denying the alternative motion for a new trial because the jury’s
finding that pain and suffering damages were not justified was based on the evidence and was not
unreasonable and arbitrary. Therefore, we affirm the amount of damages awarded in the
amended judgment entered on the jury’s verdict.
IV. Admission of Dr. Kraig’s Expert Opinion
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Metra also argues that the trial court erred in allowing Dr. Kraig’s expert opinion
regarding the permanency of plaintiff’s injury because Dr. Kraig never personally examined
plaintiff and merely reviewed plaintiff’s medical records. Metra maintains that Dr. Kraig’s
opinion constituted inadmissible “subjective opinion,” and “improper guess and speculation.”
Yet, it is well recognized that “[e]xpert testimony is admissible if the proffered expert is qualified
by knowledge, skill, experience, training, or education, and the testimony will assist the trier of
fact in understanding the evidence.” Snelson, 204 Ill. 2d at 24. “The decision of whether to
admit expert testimony is within the sound discretion of the trial court [citation], and a ruling will
not be reversed absent an abuse of that discretion.” Id.Here, the trial court properly admitted the expert testimony of Dr. Kraig concerning
whether plaintiff’s condition was permanent. Metra’s objection to Dr. Kraig’s expert opinion
because Dr. Kraig never personally examined plaintiff but, rather, reviewed his medical records,
is not well-founded. “It is not error to permit an expert to testify regarding reports or medical
tests performed by other doctors, which the expert examined in reaching his or her own opinion.”
Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 105 (1995). “An expert witness is
permitted to state an opinion based on facts not within his or her personal knowledge so long as
those facts are of a type reasonably relied upon by experts in the particular field.” Iaccino v.
Anderson, 406 Ill. App. 3d 397, 382 (2010) (citing J.L. Simmons Co. ex rel. Hartford Insurance
Group v. Firestone Tire & Rubber Co., 108 Ill. 2d 106, 117 (1985), and Hatfield v.
Sandoz-Wander, Inc., 124 Ill. App. 3d 780, 787 (1984)).
Metra cites no authority for the proposition that facts in medical records are not of a type
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reasonably relied upon by medical experts in the field. Metra’s citations provide no such
support. We held the expert opinion in Modelski v. Navistar International Transportation Corp.,
302 Ill. App. 3d 879, 886 (1999), was inadmissible because the basis for the opinion was devoid
of any factual support and entirely speculative as to how the mechanical breakdown of a tractor
might have happened. Here, in sharp contrast, the bases of Dr. Kraig’s opinion on the
permanence of plaintiff’s condition were the facts contained in plaintiff’s medical records, as
well as Dr. Kraig’s own expertise in the field.
The federal court in Dukes v. Illinois Central R. Co., 934 F. Supp. 939 (N.D. Ill. 1996),
determined the admissibility of an expert’s opinion in an affidavit in opposition to a summary
judgment motion under the federal standard under Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). The basis for exclusion was not the expert’s reliance on medical
records without examination. The court concluded that the neurologist’s methodology did not
meet the Daubert test because he was not an expert on SLAC wrists or on the causes of CTS
(which were at issue), and he had no experience in the field of ergonomics. Dukes, 934 F. Supp.
at 947. Here, in contrast, Dr. Kraig was an expert in the same field at issue at trial, neurology.
Metra’s citation to Poliszczuk also does not provide support for Metra’s position that a
medical expert cannot testify to permanency without personally examining a plaintiff. The
plaintiff’s expert in Poliszczuk testified that the brother co-plaintiff had a bulging L4, L5 disc and
an injured L5, S1 disc, relying on the plaintiff’s treating physician’s medical notes, including past
X-rays of the plaintiff’s lumbar spine, but the dates of the X-rays were not provided. Poliszczuk,
387 Ill. App. 3d at 494-95. Poliszczuk is not controlling here first because this court’s comments
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regarding the admissibility of the expert testimony on permanency were dictum. The defense in
Poliszczuk failed to object and the evidence was admitted, and this court stated in dictum that,
had the defense objected, testimony regarding the permanency of the brother’s condition would
have been barred. Poliszczuk, 387 Ill. App. 3d at 495.
Second, the facts in the present case are distinguishable, in that the medical records
reviewed by Dr. Kraig showed continuous treatment for plaintiff’s condition for about two years,
including recent examination, with no significant improvement. Concerning the permanence of
an injury, our supreme court has observed that “ ‘a long period of time without substantial
improvement is sufficient time to justify a finding that an injury is permanent.’ ” Granite City
Steel Co. v. Industrial Comm’n, 97 Ill. 2d 402, 407 (1983) (quoting Overland Construction Co. v.
Industrial Comm’n, 37 Ill. 2d 525, 531 (1967)). See also Lane v. Industrial Comm’n, 141 Ill.
App. 3d 504, 508 (1986) (vacating the circuit court’s reduction of award for permanent loss of
use of claimant’s right foot and reinstating the Illinois Industrial Commission’s decision, holding
that where continued treatment for nearly three years did not alleviate the petitioner’s symptoms
and she was unable to work since the accident, the Commission could reasonably conclude that
she sustained a permanent injury). Thus, plaintiff’s continued treatment with no significant
improvement, as shown in his medical records, provided a basis for Dr. Kraig’s expert opinion
and its admission was not an abuse of discretion.
V. Admission of Prior Accidents
Finally, Metra argues it was reversible error for the trial court to admit evidence of the
four prior trapdoor incidents on other cars. “Generally, a prior occurrence is relevant to show (1)
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the existence of a particular danger or hazard or (2) the defendant's notice of the generally
hazardous nature of the accident site.” Bachman v. General Motors Corp., 332 Ill. App. 3d 760,
785 (2002). If plaintiff offers the prior accident evidence to show a particular hazard or danger, a
plaintiff is only required to lay a foundation of substantial similarity between the prior and
present accidents. Mikus v. Norfolk & Western Ry. Co., 312 Ill. App. 3d 11, 23 (2000). The
determination whether prior occurrences or accidents are substantially similar to the one at issue
lies within the trial court’s sound discretion. Bachman, 332 Ill. App. 3d at 786 (citing Sobczak v.
Flaska, 302 Ill. App. 3d 916, 929 (1998)).
Metra argues that the trial court erred in admitting all four prior incidents involving
defective trapdoors on other cars because notice of defective trapdoors on other cars is not notice
of a defective trapdoor and latches on car 1579. However, Metra’s argument is groundless, as
there is no requirement that the very same condition or thing on the very same instrumentality be
involved. Rather, “ ‘[t]o make the proof of other independent accidents competent, the condition
or thing shown to be the common cause of danger in such accidents must be the condition or
thing contributing to the danger of the accident complained of.’ ” Simmons v. Aldi-Brenner Co.,
162 Ill. App. 3d 238, 246 (1987) (quoting Moore v. Bloomington, Decatur & Champaign R.R.
Co., 295 Ill. 63, 67 (1920)).
In Templeton v. Chicago & North Western Transportation Co., 257 Ill. App. 3d 42(1993), the plaintiff was injured by falling off a railroad bridge, and this court affirmed the trial
court’s admission of four prior accidents which were similar but at different sites. The prior
incidents involved employees falling off other defendant railroad track bridges across the
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defendant rail multi-state rail system between 1978 and 1982. Templeton, 257 Ill. App. 3d at 45.
We found the admission of the four prior accidents on the basis of notice to the defendant
railroad was not an abuse of discretion. Templeton, 257 Ill. App. 3d at 50. Similarly here, the
admission of the four prior accidents on other cars, which occurred in substantially the same way
as in plaintiff’s case, was proper to show notice to Metra of the defective condition of the latches
on the trapdoors on its locomotive cars.
Metra argues that it was error for the trial court to admit evidence of the two 2001
trapdoor incidents in particular because the incidents were four years earlier. However, Metra
cites no authority for the proposition that the length of time between the prior similar incidents
and the incident at issue is a factor. Our courts have allowed substantially similar prior incidents
with a much greater intervening length of time. See, e.g., Sobczak, 302 Ill. App. 3d at 929
(upholding admission of evidence of rollover accidents which property owner had witnessed
more than 20 years before bulldozer rollover accident that injured the plaintiff worker).
Metra also argues the 2001 trapdoor incidents should not have been admitted because the
trapdoors on those cars had only one latch, rather than two as in the instant case. However, the
prior occurrences need only be substantially similar to the accident in question; they need not be
identical. Snyder v. Curran Township, 281 Ill. App. 3d 56, 64 (1996); Simmons, 162 Ill. App. 3d
at 245.
Metra further contends that because Derwinski, the Metra shop superintendent of the 18th
Street Yard, inspected the latches after plaintiff was injured and found no defects, “the case could
not go to the jury because any verdict would have been based upon improper guess, conjecture
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and speculation requiring reversal of any jury verdict.” However, Metra’s cited authorities are
readily distinguishable, as in McInturff v. Chicago Title & Trust Co., 102 Ill. App. 2d 39 (1968),
the plaintiff’s decedent was found dead at the bottom of the stairs and no one witnessed the
accident, and in Bermudez v. Martinez Trucking, 343 Ill. App. 3d 25 (2003), the semi-tractor
trailer training instructor was sleeping when the driver hit a barrier on the highway and had no
memory of how or why the accident occurred.
Here, the common condition or thing common to the prior accidents and plaintiff’s
incident was the latches on the trapdoors of Metra’s train cars. Also, the defective nature of the
latches was at issue, not the number of latches, and the prior accidents were substantially similar
to plaintiff’s incident. Moreover, plaintiff clearly testified regarding the incident, and his
testimony was not based upon mere guess or conjecture. Notwithstanding Derwinski’s
testimony, plaintiff testified that he checked the trapdoors and the latches failed, resulting in his
injury, in a manner substantially similar to the prior accidents. Thus, we find that the admission
of the prior trapdoor incidents was not an abuse of discretion.
CONCLUSION
For the foregoing reasons, we hold that the train was “in use” under the LIA under the
facts of this case, under the multi-factor analysis established by the federal courts. We also
affirm the entry of judgment notwithstanding the verdict against Metra on plaintiff’s LIA claim
and the amount of damages because the jury’s special findings that Metra violated the LIA was
inconsistent with the general verdict reducing damages. Under the LIA there is no reduction for
contributory negligence. We hold Metra has failed to satisfy the standard for a judgment
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notwithstanding the verdict, or for a new trial, based on the jury’s failure to award any damages
for disability or pain and suffering because the jury’s finding was based on the evidence was not
inconsistent with the damages awarded for compensatory damages. Further, the admission of Dr.
Kraig’s expert opinion on the permanency of plaintiff’s condition was not an abuse of discretion
where Dr. Kraig’s opinion was based on plaintiff’s own medical records, which showed
continuous treatment with no significant improvement. Lastly, the admission of the four prior
accidents involving latches on trapdoors was not abuse of discretion where those accidents were
substantially similar to plaintiff’s incident. Therefore, we affirm the modified judgment entered
by the circuit court in favor of plaintiff in the amount of $500,000.
Affirmed.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
HARRY BALOUGH, )
)
Plaintiff-Appellee, )
)
v. )
)
NORTHEAST ILLINOIS REGIONAL COMMUTER )
RAILROAD CORPORATION, d/b/a Metra, a )
corporation, )
)
Defendant-Appellant. )
No. 1-09-3053
Appellate Court of Illinois
First District, FOURTH DIVISION
May 19, 2011
Justice Pucinski delivered the opinion of the court with opinion.
Presiding Justice Lavin and Justice Salone concurred in the judgment and opinion.
Appeal from the Circuit Court of Cook County.
The Hon. Arnette R. Hubbard, Judge Presiding.
COUNSEL FOR APPELLANT
JUDGE, JAMES & KUJAWA, LLC, of Park Ridge, IL
(Jay S. Judge, Michael E. Kujawa, Thomas N. Osran, of counsel)
COUNSEL FOR APPELLEE
HOEY & FARINA, P.C., of Chicago, IL
(Steven P. Garmisa, George T. Brugess, Kristen E. Lukaszak, of counsel)
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48