Gonet v. Chicago & North Western Transportation Co.

552 N.E.2d 1224, 195 Ill. App. 3d 766, 142 Ill. Dec. 483, 1990 Ill. App. LEXIS 348
CourtAppellate Court of Illinois
DecidedMarch 23, 1990
Docket1-89-1748
StatusPublished
Cited by13 cases

This text of 552 N.E.2d 1224 (Gonet v. Chicago & North Western Transportation Co.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gonet v. Chicago & North Western Transportation Co., 552 N.E.2d 1224, 195 Ill. App. 3d 766, 142 Ill. Dec. 483, 1990 Ill. App. LEXIS 348 (Ill. Ct. App. 1990).

Opinion

PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff brought suit against defendant under the Federal Employers’ Liability Act (45 U.S.C. §§ 51 through 60 (1982)), alleging that, due to defendant’s negligence, plaintiff had suffered severe and irreversible hearing loss. After a bench trial, judgment was entered for the defendant, and plaintiff appeals.

On appeal, the plaintiff raises these issues: (1) whether the judgment of the court was contrary to the manifest weight of the evidence at trial, and (2) whether the judgment of the court was based on evidence prohibited under the Federal Employers’ Liability Act.

At trial the court heard the testimony of the plaintiff, his wife, and Dr. Byron Eisenstein, M.D., all of whom were called by the plaintiff as his witnesses, and of Dr. Thomas Cook, M.D., called by defendant as its sole witness.

The Federal Employers’ Liability Act (FELA) provides that every common carrier railroad “shall be liable in damages to any person suffering injury while he is employed by such carrier *** for such injury or death resulting in whole or in part from the negligence of *** such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, ■ track, roadbed, works, boats, wharves, or other equipment.” (45 U.S.C. § 51 (1982).) The statute further provides that the employee’s contributory negligence shall not bar his recovery, but damages shall be diminished in proportion to the employee’s negligence (45 U.S.C. § 53 (1982)), and where the injury or death resulted from any negligence, however slight on the part of the railroad in violation of the statute, the employee shall not be held to have assumed the risks of his employment to defeat his claim for damages under this statute (45 U.S.C. § 54 (1982)).

Basic to the success of plaintiff’s claim is proof of some negligence however slight on the part of defendant railroad and a resulting injury to plaintiff. The evidence must establish not only defendant’s negligence but also a causal connection to plaintiff’s injury. The judicial appraisal of proofs is narrowly limited to the single inquiry whether with reason the conclusion may be drawn that the negligence of the employer played any part at all in the injury. Rogers v. Missouri Pacific R.R. Co. (1957), 352 U.S. 500, 506, 1 L. Ed. 2d 493, 499, 77 S. Ct. 443, 448.

Actionable negligence is the breach of a legal duty through neglect or carelessness which results in injury to another. It is the failure of duty or omission of something which ought to have been done. Black’s Law Dictionary 28 (5th ed. 1979).

The complaint in this case alleges defendant was negligent in failing to provide the plaintiff with a safe place to work, in requiring plaintiff to work in an unsafe place where noise levels were unsafe and dangerous, in failing to provide safe and proper tools and equipment to do the work, in failing to provide adequate and proper hearing-protection devices, in failing to warn plaintiff of his exposure to unsafe noise levels, in failing to adopt safe customary practices to do the work, and in assigning plaintiff to work in a place where he was exposed unnecessarily to excessive and high noise levels without protection.

On appeal, plaintiff frames the question before this court in the following manner: “Did the trial court err in determining that the defendant was not negligent for failing to provide hearing protection, even when it was asked, to an employee it knew had a hearing problem and who worked in an environment which the uncontroverted evidence showed was dangerously noisy?” Plaintiff also argues that aggravation of a preexisting condition is compensable under the FELA.

In announcing his decision, the trial judge stated he was troubled by the quality of the evidence produced. He stated that in total, from all reasonable inferences from the evidence offered, he found no proof of negligence attributable to the railroad and stated he could not guess at the negligence suggested on the part of the defendant. He considered the testimony of plaintiffs treating physician and concluded from his testimony that during his lifetime plaintiff was exposed to noise. The judge commented on plaintiff’s exposure to noise while in military service but stated there was no evidence to establish to what extent plaintiff’s hearing may have been impaired while in service. He stated that he was entitled to consider and make reasonable inferences from the testimony of the plaintiff and his wife, who had an interest in the outcome of the trial. The trial judge, in considering the supposition offered by plaintiff that his impairment is due to negligence of the railroad, commented that he was troubled by plaintiff’s failure as a union official to complain about the noise level and commented that plaintiff was presently employed by the defendant company against whom this claim was filed. The trial judge found that plaintiff had failed to sustain his burden of proof within the requirements of the law, and he entered judgment for the defendant.

The uncontroverted evidence established that plaintiff commenced work for defendant railroad in January 1971 working as an assistant carman assigned to its shop on California Avenue in Chicago, Illinois. His duties required him to work on and repair railroad cars, and in doing so, he used pneumatic air jacks, air rivets, air grinders, air chisels, air nibblers, welding equipment and other power equipment. Plaintiff testified that the noise level was intense and constant. On cross-examination, however, he testified that the noise in the shop was not constant and that since approximately 1979 he has worked in the open yard, where the noise level was greatly reduced.

Immediately prior to his employment with the defendant railroad, plaintiff had worked for another company where his work required the use of hand tools. His military service was in the Marine Corps from September 1961 until January 1966. While in military service, he fired M — 1 rifles and a number of other military weapons and was involved in demolition work. Plaintiff testified he set explosives approximately three times. He also testified that he has hunted since he was 16 years old, going out two or three times each season, and that he was exposed to loud noises from rifle fire when hunting.

Prior to plaintiff’s employment and as part of its established company practice, the defendant railroad required plaintiff to undergo a physical examination which included an audiogram. The examination and hearing test were performed on January 14, 1971.

Following his preemployment physical examination, plaintiff testified he was not informed of the results of his audiogram, and although the test revealed some high frequency hearing loss, no limitations were placed on his employment.

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Bluebook (online)
552 N.E.2d 1224, 195 Ill. App. 3d 766, 142 Ill. Dec. 483, 1990 Ill. App. LEXIS 348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonet-v-chicago-north-western-transportation-co-illappct-1990.