Luther v. Norfolk & Western Railway Co.

649 N.E.2d 1000, 208 Ill. Dec. 640, 272 Ill. App. 3d 16, 1995 Ill. App. LEXIS 341
CourtAppellate Court of Illinois
DecidedMay 11, 1995
Docket5-93-0530
StatusPublished
Cited by14 cases

This text of 649 N.E.2d 1000 (Luther v. Norfolk & Western Railway 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
Luther v. Norfolk & Western Railway Co., 649 N.E.2d 1000, 208 Ill. Dec. 640, 272 Ill. App. 3d 16, 1995 Ill. App. LEXIS 341 (Ill. Ct. App. 1995).

Opinions

JUSTICE GOLDENHERSH

delivered the opinion of the court: Defendant, Norfolk and Western Railway Company, appeals from a judgment in favor of plaintiff, John Luther, in an action brought by plaintiff under the Federal Employers’ Liability Act (FELA) (45 U.S.C. § 51 et seq. (1988)), for back injuries allegedly sustained while working as a track laborer. The circuit court of Madison County entered judgment on a jury verdict awarding plaintiff $1,572,500. Defendant contends that (1) the trial court erred in directing a verdict against defendant on the issue of plaintiff’s contributory negligence; (2) the trial court erred in admitting evidence of inapplicable and irrelevant Occupational Safety and Health Act (OSHA) (29 U.S.C. § 651 et seq. (1988)) regulations; (3) the trial court erred in permitting plaintiff to present evidence of defendant’s surveillance tapes of plaintiff; (4) the trial court improperly permitted plaintiff’s expert to give previously undisclosed opinions; (5) the trial court erred in permitting plaintiff to file numerous amendments during trial; and (6) the verdict was excessive and a product of passion and prejudice. We affirm.

I

This action arose from an injury plaintiff sustained in the course of his employment for defendant as a track laborer in an extra gang that replaced defective rail. Plaintiff held this position from 1979 until 1988. On August 19, 1988, plaintiff was assigned to work at the Jennings, Missouri, jobsite. Plaintiff, William Burg, foreman, and Mike James, assistant foreman, comprised the extra gang. Usually, anywhere from three to five additional laborers are part of the gang. On this particular day, plaintiff was the only laborer. The men were assigned to replace defective track on the main line at Jennings, Missouri. The gang was shorthanded and working under track time, meaning the gang had a certain amount of time to complete work on the track so as to not interfere with the train schedule. Plaintiff testifled that shortly after arriving at work, plaintiff, Burg, and James took the company truck to Luther Yard to pick up the material they needed for work that morning. The materials plaintiff picked up included bolts, spikes, and 20 pairs of angle bars. Plaintiff stacked the materials alongside the tool boxes in the truck bed. After picking up the material, the gang headed for the mainline tracks to begin replacing the defective rails. To remove defective rail, the rail is cut into a 10-foot-long section. Then, the defective rail is cut into three pieces, which are placed in the truck bed. Each piece of rail weighs about 110 to 132 pounds. Plaintiff testified that at the time of the occurrence, there were about 8 to 10 pieces of defective rail in the back of the truck, along with other tools and materials the gang used that morning.

As the gang was about to move on to the next jobsite, Burg told plaintiff to put away the rail saw which had been used to cut out the defective rail. The. rail saw weighs about 40 pounds. Plaintiff climbed onto the back of the truck bed, and James handed him the saw. Plaintiff grabbed the saw and turned around in the spot where he was standing and looked for a safe place to lay the saw down. Plaintiff observed a clear space near the box where the rail saw is normally stored. The storage box is located in the front of the truck bed near the cab. Plaintiff testified he could not go directly to the saw box due to the pieces of rail and other materials in the truck bed. Further, plaintiff testified that he could not place the rail saw on top of the pieces of old rail, angle bars, and debris because the blades of the rail saw could easily chip, thereby creating a safety hazard — a damaged blade could cause the saw to "explode” while in use. Moreover, to place the rail saw on top of the debris is a violation of company safety rules. Plaintiff navigated his way to the clearing, bent his knees, and reached out to place the saw in the vacant space. As he reached out, plaintiff fell to his knees, dropping the saw. Simultaneously, plaintiff felt a sharp pain in the middle of his back. Burg hopped onto the truck to assist plaintiff. Burg testified that plaintiff appeared to be in a lot of pain. Plaintiff asked to be taken to a hospital as the pain grew worse. Another worker took plaintiff to St. Elizabeth’s Hospital in Granite City, where he was hospitalized for about a week. Plaintiff further testified that prior to the accident, he never experienced any back pain. Plaintiff stated that since the accident he experiences constant back pain with associated problems in his extremities.

Burg and James testified that laborers are responsible for keeping the truck bed clean. Burg stated that the foreman determines when, during the day, laborers are to clean up the truck. Burg further testified that, on the day of the occurrence, the gang had only one laborer, plaintiff, and they were working under a time constraint. Burg stated: "[Because of these conditions,] I had no intentions of having anyone clean the back of the truck because we used it as a working platform for the materials we used throughout the day.” Additionally, Burg testified that defendant did not have a safety policy requiring work crews to keep the truck beds clean while working.

Plaintiff’s physician, Dr. Ravi Shitut, an orthopedic surgeon, testified that plaintiff suffers from degenerative disk disease, which is caused by the normal aging process. According to Dr. Shitut, this condition was aggravated by plaintiff’s accident. Dr. Shitut explained that plaintiff’s condition is inoperable because it involves three disks. Surgical treatment for degenerative disk disease is, in Dr. Shitut’s opinion, limited to two disks at the most. Dr. Shitut stated that plaintiffs symptoms of back pain and degenerative disk disease are permanent and that the only treatment available for plaintiff is exercise, using heat on the affected area, and taking anti-inflammation and nonsteroidal analgesic-type medications. Regarding plaintiffs ability to return to his laborer’s job, Dr. Shitut testified that as a result of plaintiffs injuries, he is unable to resume his work as a railroad laborer.

Defendant’s company physician also examined plaintiff and determined that plaintiff, due to lower back pain, did not conform to the standard required for the position of laborer. Testifying as a medical expert for defendant, Dr. John Atkinson, a rheumatologist and arthritis specialist, also examined plaintiff. Upon his review of plaintiffs medical record and a physical examination of plaintiff, Dr. Atkinson determined that plaintiff did not have secondary degenerative arthritis but did suffer from degenerative disk disease. Further, Dr. Atkinson testified that he could not find a medical explanation for plaintiffs continuing discomfort and recommended that plaintiff undergo a work-hardening program to increase his muscle tone and strength.

Plaintiffs economic expert, Dr. Leroy Grossman, testified that in the four years between plaintiffs injury and the time of the trial, plaintiff suffered a loss of $77,704 in lost wages. Dr. Grossman opined that plaintiff, age 38 at the time of the trial, would suffer future lost earnings of $536,785 if he retired at age 63 and that this figure would rise to $589,618 if plaintiff retired at age 66.

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Luther v. Norfolk & Western Railway Co.
649 N.E.2d 1000 (Appellate Court of Illinois, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
649 N.E.2d 1000, 208 Ill. Dec. 640, 272 Ill. App. 3d 16, 1995 Ill. App. LEXIS 341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luther-v-norfolk-western-railway-co-illappct-1995.