Appendices — Norfolk & Western Railway Co. v. Luther

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APPENDIX A

[Filed May 11, 1995]

IN THE APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

No. 5-93-0530

JOHN D. LUTHER,

Plaintiff-A ppellee,

Vv.

NORFOLK AND WESTERN RAILWAY COMPANY,

a corporation,

Defendant-A ppellant.

Appeal from the Circuit Court of Madison County

No. 90-L-1354—Honorable George J. Moran,

Judge, presiding

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 "m-

ployer’s Liability Act (FELA) (45 U.S.C. §51 et seq.

(1986) ), for back injuries allegedly sustained while work-

ing as a track laborer. The circuit court of Madison

County entered judgment on a jury verdict awarding plain-

tiff $1,572,500. Defendant contends that (1) the trial

court erred in directing a verdict against defendant on

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2a

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. (1985)) 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 plaintiffs expert to give pre-

viously 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, job site. Plaintiff, William Burg, fore-

man, and Mike James, assistant foreman, comprised the

extra gang. Usually, anywhere from three to five addi-

tional laborers are part of the gang. On this particular

day, plaintiff was the only laborer. The men were as-

signed to replace defective track on the main line at Jen-

nings, 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 inter-

fere with the train schedule. Plaintiff testified 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 plain-

tiff 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 rai!

3a

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 job site,

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. Plain-

tiff 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 plain-

tiff 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. Plain-

tiff 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 asso-

ciated problems in his extremities.

4a

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

plaintiffs 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 non-

steroidal analgesic-type medications. Regarding plaintiff's

ability to return to his laborer’s job, Dr. Shitut testified

that as a result of plaintiff's injuries, he is unable to

resume his work as a railroad laborer.

Defendant’s company physician also examined plain-

tiff 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 special-

ist, also examined plaintiff. Upon his review of plaintiff's

medical record and a physical examination of plaintiff,

Dr. Atkinson determined that plaintiff did not have sec-

Sa

ondary degenerative arthritis but did suffer from degen-

erative disk disease. Further, Dr. Atkinson testified that

he could not find a medical explanation for plaintiff's con-

tinuing discomfort and recommended that plaintiff un-

dergo a work-hardening program to increase his muscle

tone and strength.

Plaintiff's economic expert, Dr. Leroy Grossman, testi-

fied that in the four years between plaintiff's 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 earn-

ings of $536,785 if he retired at age 63 and that this

figure would rise to $589,618 if plaintiff retired at age 66.

Jack Strader, plaintiff's rehabilitation counselor and

vocational expert, testified that plaintiff was learning dis-

abled and suffered from depression and continuing pain

due to his back injury. As a result of these factors, plain-

tiff was not presently employable. Strader opined that

should plaintiff overcome these difficulties, he could prob-

ably secure employment in an unskilled minimum wage

job as custodial/maintenance-type work.

Defendant offered expert testimony from an occupa-

tional therapist and a rehabilitation counselor. Douglas

Cole, an occupational therapist, was called to testify re-

garding plaintiff's ability to perform work. After review-

ing plaintiff's records, Cole opined that plaintiff could

perform work at the sedentary, light- or medium-level

categories with restrictions, such as no highly repetitive

squatting, kneeling, or bending activities. James England,

a rehabilitation counselor, also reviewed plaintiff's records

and recommended that plaintiff receive tutoring or on-the-

job training in order to enter into a new career. Based

on plaintiff's record, England opined that the types of

work plaintiff can do, with additional training, include

drafting, dental lab technician, cabinet-making, locksmith,

small engine repair, and taxidermy.

6a

At the close of all the evidence, plaintiff filed a motion

for directed verdict on the issue of contributory negli-

gence, which the trial court granted. The trial court de-

nied defendant’s motion for directed verdict on the issue

of the affirmative defenses of contributory negligence and

failure to mitigate damages.

The jury returned a verdict in favor of plaintiff and

awarded $1,572,500 in damages. The trial court denied

defendant’s posttrial motion for judgment notwithstanding

the verdict and for a new trial. Defendant now appeals.

II

Defendant first argues that the trial court erred in

directing a verdict for plaintiff on the issue of contribu-

tory negligence. Defendant contends that, at trial, suffi-

cient evidence was adduced of plaintiff's knowledge of the

allegedly dangerous condition and of plaintiffs fault in

creating the unsafe condition by failing to clean the truck

bed. Defendant argues that because there was evidence

of plaintiff's contributory negligence, the trial court should

not have directed a verdict for plaintiff but, rather, it

should have submitted the issue of plaintiff's contributory

negligence of the jury. We disagree.

It is well established that in a FELA case, the defend-

ant is entitled to a contributory negligence instruction if

there is any evidence to support the theory. (Pruett v.

Norfolk & Western Ry. Co. (1994), 261 Ill. App. 3d 29,

33, 632 N.E.2d 652, 655; Uhrhan vy. Union Pacific R.R.

Co. (1993), 155 Ill. 2d 537, 547, 617 N.E.2d 1182,

1187.) Nonetheless, the burden of proving plaintiff's

contributory negligence is on the defendant. (Uhrhan,

155 lll. 2d at 547, 617 N.E.2d at 1187.) Our supreme

court defined contributory negligence as “a careless act

or omission on the plaintiffs part tending to add new

dangers to conditions that the employer negligently cre-

ated or permitted to exist.” (Emphasis added.) (Uhrhan,

155 Ill. 2d at 548, 617 N.E.2d at 1187 (citing Taylor v.

hs cenareenneneinerenseenticenneremennemaniatcennitentiteaianiiilil

Ta

Burlington Northern R.R. Co. (9th Cir. 1986), 787 F.2d

1309, 1316).) Directed verdicts should be granted only

when all the evidence, viewed in the light most favorable

to the opponent, so overwhelmingly favors the movant

that no contrary verdict based on that evidence could ever

Stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37

Ill. 2d 494, 229 N.E.2d 504.

Defendant maintains that plaintiff acted negligently and

that the jury could have disbelieved plaintiff's testimony

and inferred that, based merely on the fact that the acci-

dent occurred, plaintiff failed to exercise due care. To

support its contention, defendant relies on Uhrhan vy.

Union Pacific R.R. Co. (1993), 155 Ill. 2d 537, 617

N.E.2d 1182.

In Uhrhan, the plaintiff, working at night as a switch-

man, was injured when he tripped over a piece of wire

while walking alongside the tracks. There was no light

in the area where the plaintiff was working. However,

the plaintiff had a lantern with him. The lanterns were

used to signal other switchmen and to illuminate the area

while walking through the yard. Plaintiff was aware of

the possibility of debris alongside the track. Also, the rail-

road had a safety rule requiring workers to be on the

lookout for tripping hazards. At trial, the jury found in

favor of the plaintiff and awarded him $17,000. The jury

further determined that the plaintiff had been 40% con-

tributorily negligent and reduced his recovery accordingly.

Judgment was entered in favor of the plaintiff in the

amount of $10,200. The appellate court reversed the

jury’s finding of contributory negligence, finding no evi-

dence warranting the submission of contributory negligence

instructions to the jury. Our supreme court reversed the

appellate court, holding that a defendant in a FELA case

is entitled to have a jury instructed on contributory negli-

gence if there is any evidence to support the theory.

Further, the supreme court found that evidence of a safety

8a

rule violation raises a question of fact as to contributory

negligence. Thus, the supreme court concluded that a jury

could have reasonably determined that the plaintiff's ac-

tions added additional dangers to the situation.

Defendant's reliance on Uhrhan is misplaced. Accord-

ing to Uhrhan, we review the record to determine if there

is any evidence that plaintiff's omissions or actions added

additional dangers to the situation. If plaintiff's actions

or omissions increased the danger to himself, defendant is

entitled to raise the issue of contributory negligence. How-

ever, defendant is not entitled to reach the jury on the

issue of contributory negligence, for which defendant bears

the burden of proof, on nothing more than defendant's

disbelief of plaintiff's testimony. (Dixon v. Penn Central

Co. (6th Cir. 1973), 481 F.2d 833, 837.) “Other evi-

dence of the matter to be proved must be adduced.”

Dixon, 481 F.2d at 837.

Here, there is no evidence that plaintiff violated any

company safety rules. Burg testified that at the time of

plaintiff's injury there were no safety rules requiring

laborers to clean up the truck bed after the completion

of work at each job site. Further, the gang was operating

with only one laborer and under a time constraint to get

the work done quickly so as to avoid disrupting rail

traffic. Additionally, while defendant used other vehicles

to deliver new rail to each site, there were no correspond-

ing arrangements for removal of defective rail and debris

other than piling it onto the truck bed thereby creating

the hazardous condition under which plaintiff worked.

Moreover, plaintiff, exercising due care, checked for haz-

ards and decided to lay the saw in a nearby vacant space

because he could not safely reach the rail saw storage

box or safely put the saw on top of old rails. Thus, his

conduct did not depart from that of a reasonably prudent

employee in this situation. (Tiller v. Atlantic Coast Line

R.R. Co. (1943), 318 U.S. 54, 68, 87 L. Ed. 610, 618,

9a

63 S. Ct. 444, 451-52.) We find no evidence of contribu-

tory negligence and conclude that the trial court properly

directed verdict for plaintiff.

Ill

Defendant next argues that a general verdict does not

preclude this court from Setting aside the jury's verdict

because the trial court improperly admitted irrelevant and

highly prejudicial evidence of defendant's alleged viola-

tion of OSHA regulations which were inapplicable to the

facts of this case. We are unpersuaded by defendant's

contention.

Under section 2-1201(d) of the Civil Practice Law

(735 ILCS 5/2-1201(d) (West 1992)), a general verdict

can be sustained on any of several bases of liability and

will not be reversed due to the impairment of one of the

theories. (Witherell v. Weimer (1987), 118 Ill. 2d 321,

329, 515 N.E.2d 68, 72: Moore y. Jewel Tea Co. (1970).

46 Ill. 2d 288, 263 N.E.2d 103.) Section 2-1201(d)

provides:

“§ 2-1201. Return of verdict—Separate counts—De-

fective or unproven counts. * * *

* * *

(d) If several grounds of recovery are pleaded in sup-

port of the same claim, whether in the Same or different

counts, an entire verdict rendered for that claim Shall not

be set aside or reversed for the reason that any ground

is defective, if one or more of the grounds is sufficient to

Sustain the verdict; nor shall the verdict be set aside or

reversed for the reason that the evidence in support of any

ground is insufficient to sustain a recovery thereon, unless

before the case was submitted to the jury a motion was

made to withdraw that ground from the jury on account

of insufficient evidence and it appears that the denial of

the motion was prejudicial.” 735 ILCS 5/2-1201(d)

(West 1992).

10a

Here, defendant claims that the allegations of OSHA

violations were inapplicable to the facts of the case. De-

fendant has made no attempt to establish that the evidence

was insufficient to sustain the verdict as to defendant's

liability. After carefully examining the record, we con-

clude that there is ample evidence to support the jury’s

verdict. Even assuming, arguendo, that the evidence of

alleged OSHA violations was improperly allowed, the

other evidence was sufficient to sustain the other theories

of negligence submitted to the jury. Furthermore, before

the submission of the case to the jury, defendant could

have made a motion “to withdraw that ground from the

jury on account of insufficient evidence.” (735 ILCS

5/2-1201(d) (West 1992). However, having failed to

do so, defendant cannot now seek reversal of the verdict

predicated upon the infirmity of one of the theories of

liability. Accordingly, we find no basis for reversal on

this ground.

IV

Defendant argues that the trial court erred in permit-

ting plaintiff to present evidence of defendant’s surveil-

lance tapes because the evidence was totally irrelevant and

highly prejudicial, thereby creating a punitive atmosphere

which deprived defendant of a fair trial.

It is well established that video and photographic ex-

hibits are admissible if the probative value of the exhibits

is not outweighted by the danger of unfair prejudice.

(Drews v. Gobel Freight Lines, Inc. (1991), 144 Ill. 2d

84, 99, 578 N.E.2d 970, 977; Cisarik v. Palos Community

Hospital (1991), 144 Ill. 2d 339, 579 N.E.2d 873.) The

admission of video and photographic exhibits into evi-

dence is within the sound discretion of the trial court.

Carney v. Smith (1992), 240 Ill. App. 3d 650, 656, 608

N.E.2d 379, 383.

During the trial plaintiff introduced videotapes of sur-

veillance of plaintiff conducted by defendant. The video-

tapes depicted plaintiff going about his daily activities.

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The tapes represent about 50 hours of surveillance activity

and were intended to document physical activities incon-

sistent with plaintiff’s asserted physical limitations result-

ing from his injury. However, the videotapes do not show

Plaintiff performing activities inconsistent with his claimed

physical limitations.

Because plaintiff's abilities are a matter in controversy,

the surveillance tapes were relevant and had probative

value concerning the issue of the extent of plaintiff’s in-

jury (Carney, 240 Il. App. 3d at 657, 608 N.E.2d

at 383.) Defendant urges this court to find that the

prejudicial effect of the videotapes substantially outweighs

their probative value because the videotapes tend to cor-

roborate both plaintiff’s testimony and the medical testi-

mony regarding plaintiff’s limited physical capacity. How-

ever, we see no prejudice that defendant allegedly suf-

fered by admission of the videotapes. Therefore, we find

that the trial court did not err in admitting the videotapes

into evidence.

V

Defendant also raises objections to the testimony of

plaintiff's expert economist, Dr. Leroy Grossman. De-

fendant maintains that Dr. Grossman’s testimony violated

Supreme Court Rule 220 (134 Ill. 2d R. 220) because

the opinions expressed were beyond the scope of his orig-

inal report and deposition testimony regarding plaintiff's

lost wages. (Singh v. Air Illinois, Inc. (1988), 165 Il.

App. 3d 923, 930, 520 N.E.2d 852, 856.) The figures

presented in Dr. Grossman’s testimony at trial and in the

supplemental report were based on the earnings of plain-

tiff's coworker, a machine operator. Although plaintiff

is a track laborer, he also has machine operator rights,

which are lower on defendant’s seniority roster. Because

plaintiff's future wages are based on a Seniority system

and since the coworker’s classification was comparable to

plaintiffs, the coworker’s earnings were used by Dr. Gross-

man to recalculate plaintiff's future lost wages. Defendant

12a

contends that the recalculations essentially amended the

original report because the amount of future lost wages

was significantly greater. Defendant further contends that

because plaintiff failed to make the supplemental report

available to defendant until the eve of the trial, defend-

ant was unable to adequately investigate the underlying

basis of the new opinions. Consequently, defendant argues

that it was prejudiced by this nondisclosure.

Supreme Court Rule 220(c)(3), which relates to the

discovery of an expert’s opinion, states:

“Rule 220. Expert Witnesses

aK *K *K

(c) Discovery.

Bd * *

(3) A party shall be required to season-

ably supplement his answers to interroga-

tories propounded under this rule as addi-

tional information becomes known to the

party or his counsel.” 134 Ill. 2d R.

220(c)(3).

The Committee Comments for paragraph (c) further

illuminates a party’s obligation to disclose any modifica-

tions in opinions which may be expressed at trial, stating

that:

“In order to prevent an undisclosed shift in theory

or belief the rule requires that a party seasonably

submit a modified report or supplemental answers

taking into account shifts in the expert’s views.” 134

Ill. 2d R. 220(c)(3), Committee Comments at 181.

Upon review of the record, we conclude that Dr. Gross-

man’s revisions did not constitute a “shift in theory or

belief.” Dr. Grossman’s supplemental report was merely

an update of the original and used the same methodology

to determine the present value of plaintiff's future lost

a _—— eyes

13a

wages. With respect to the timeliness of plaintiff's disclo-

sure of the supplemental figures, defendant failed to pro-

duce the requested wage roster and seniority list until

shortly before the start of the trial. Defendant can hardly

complain about the timeliness of plaintiff's disclosure given

its delay in producing the requested documents. Addi-

tionally, the trial court permitted defendant to interview

Dr. Grossman regarding the supplemental figures before

he testified at trial. There was no violation of Supreme

Court Rule 220.

VI

The next issue defendant asks us to address is whether

the trial court erred by allowing plaintiff to amend his

complaint on four separate occasions between the day

before the trial and the jury instruction conference. Ac-

cording to defendant, each amended complaint filed by

plaintiff presented a new theory of liability, thereby forcing

defendant to constantly respond to new legal theories and

preventing it from obtaining full disclosure of plaintiff's

claim until the end of the trial. Defendant asserts that

these amendments unfairly prejudiced its case and de-

prived defendant of a fair trial.

The decision to allow an amendment to a complaint

lies within the sound discretion of the trial court, and its

decision will not be disturbed absent an abuse of discre-

tion. (Grimming v. Alton & Southern Ry. Co. (1990),

204 Ill. App. 3d 961, 987, 562 N.E.2d 1086, 1102.)

Specificaliy, given the liberal policy of permitting amend-

ments to pleadings, courts may allow, after the close of

the evidence, amendments to conform pleadings to the

proof, “but their materiality to the evidence already in-

troduced must be apparent.” (Lawson vy. Hill (1979),

77 Ill. App. 3d 835, 845, 396 N.E.2d 617, 625.) The

Lawson court went on to explain:

“[W]hile recognizing that an amendment should not

ordinarily be permitted to set up matters of which the

l4a

pleader had full knowledge at the time of interposing

the original pleading and no excuse is presented for

not putting its substance in the original pleading,

such an amendment will be allowed where justice is

not served by denying leave to amend; doubts should

be resolved in favor of allowing amendments.” Law-

son, 77 Ill. App. 3d at 845, 396 N.E.2d at 625.

In the instant case, plaintiff's original complaint alleged

as negligence defendant’s failure to provide plaintiff with

a reasonably safe place to work. Plaintiff's initial amend-

ments neither raised new issues nor changed the underly-

ing facts. These amendments merely added additional

allegations of negligence arising out of violations of OSHA

regulations. 29 U.S.C. § 651 et seq. (1985).

The trial court permitted plaintiff to file his second

amended complaint on the day jury selection began. The

court granted defendant a 13-day continuance to permit

defendant to address plaintiff's additional allegations of

OSHA violations. At that time, the court stated that it

would give defendant, upon written motion, more time

if needed. Further, the court advised defendant that it

would also consider postponing opening statements should

that be necessary to ensure defendant adequate time to

review the amended allegations and related law. At no

time thereafter did defendant request any additional time

to respond to amended allegations.

With respect to plaintiff's fourth amended complaint,

the only new issue raised was whether the Locomotive In-

spection Act (45 U.S.C. § 23 (1986)) was applicable to

the particular truck involved here. The trial court granted

defendant’s motion to dismiss plaintiff's fourth amended

complaint.

Despite defendant’s contention to the contrary, the trial

court’s allowance of these amendments did not prejudice

defendant or deprive him of a fair trial. Therefore, we

15a

find no error or abuse of discretion in the trial court’s

ruling allowing the amendments to the complaint.

Vil

Finally, defendant argues that the verdict is excessive

because it is based on passion and prejudice. Defendant

contends that the $1,500,000 award bears no relation-

ship to the nature and extent of plaintiff’s injury and the

substantial evidence of plaintiff's contributory fault. We

find no merit in this contention.

Despite defendant’s strenuous arguments to the con-

trary, our review of the record finds nothing presented to

the jury at trial or in opening statements to inflame the

passions and prejudices of the jury. Most importantly,

the record clearly supports the jury’s verdict. The ascer-

tainment and assessment of damages are primarily ques-

tions of fact and are peculiarly within the province of the

jury to determine. (Bridgeman v. Terminal R.R. Asso-

ciation (1990), 195 Ill. App. 3d 966, 975, 552 N.E.2d

1146, 1151.) This court will not substitute its judgment

for that of the jury as to the amount awarded in any given

case. (Bridgeman, 195 Ill. App. 3d at 975, 552 N.E.2d

at 1151.) Here, the amount of the award is not excessive,

nor does it shock the judicial conscience. There is no

basis in this record to say the size of the verdict is the

result of prejudice or passion on the part of the jury.

For the foregoing reasons, the judgment of the circuit

court of Madison County is affirmed.

Affirmed.

WELCH, J., concurs.

16a

JUSTICE LEWIS, dissenting:

“What’s in a name? that which we call a rose

By any other name would smell as sweet.”

Shakespeare: Romeo and Juliet, act Ul, sc. ii, 43.

I dislike disagreeing with my colleagues, but I just can

not see how plaintiff's negligence is different from plain-

uff’s contributory negligence. The point is, plaintiff had

the burden of proving that defendant was negligent, and

plaintiff did so by proving defendant’s employee was neg-

ligent. Who was defendant’s employee that was so neg-

ligent? Why it was none other than plaintiff. If plain-

tiffs negligence was so great as to be imputed to defend-

ant, how can we say that plaintiff was not contributorily

negligent? There must be two different meanings for the

word “negligence,” depending on whose ox is being gored.

The evidence for purposes of a motion for a directed

verdict by plaintiff on the issue of contributory negligence

must be construed most favorably for defendant. (Ped-

rick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d

494, 229 N.E.2d 504.) Thus, the evidence showed that

plaintiff was responsible for keeping the back or bed of

the truck clean and orderly. He did not do so. Plaintiff

could and should have taken some time to straighten the

truck up, but he did not. Plaintiff could and should

have taken the time to clear a path to where he wished

to place the saw, but he did not. Plaintiff could have laid

the saw down on a tool box (this matter was vigorously

disputed), stepped over materials in the truck, and posi-

tioned himself better to move the saw to the floor of the

truck, but he did not. Plaintiff, after receiving the saw

from the assistant foreman, only then looked for a place

to set the saw, instead of deciding, before he accepted

the saw, where he was going to place the saw. Plaintiff

reached out to place the saw in a small clear spot instead

of positioning himself so that he could bend his knees and

17a

Set the saw straight down. Clearly, the jury could find

that the party who caused the accident was the plaintiff.

In fact, if you exclude plaintiff's acts as the cause of the

accident, there is not anyone else or any other agency

that we can point the finger at as the cause of plaintiff's

injury.

The facts in this case are more one-sided than the facts

in Uhrhan v. Union Pacific R.R. Co. (1993), 155 Ill. 2d

537, 617 N.E.2d 1182, because in Uhrhan someone other

than plaintiff left the wire along the tracks, plaintiff was

busy doing his job by signaling and keeping his eye on

the other switchmen, and at one time the railroad had

recognized the danger and hired people to walk along

the tracks to clean up the debris. In spite of all this,

the supreme court said that the jury should have been

allowed to decide if plaintiff should have been aware of

the possibility of debris alongside the track and kept a

lookout. In the case at bar, the evidence could easily

be construed that there was not any other person or out-

side agency that caused the accident other than the plain-

tiff himself.

The trial judge predicated his ruling in the case at bar

on the appellate court decision in Uhrhan, which the

supreme court then reversed. (Uhrhan, 155 Ill. 2d 537,

617 N.E.2d 1182.) Plaintiff, in this appeal, shifted his

reliance to this court’s opinion in O’Ryan v. CSX Trans-

portation, Inc. (1993), 255 Ill. App. 3d 214, 626 N.E.

2d 374. No attention was paid to the ranting and raving

contained in the dissent. The supreme court, however,

did not reverse this court’s decision in O’Ryan. It vacated

the opinion of this court without comment pursuant to its

supervisory authority. (O’Ryan v. CSX Transportation,

Inc. (1994), 155 Ill. 2d 565, 630 N.E.2d 443.) I do

not claim to be a genius, but I believe that the supreme

court was sending this court a message. Simply put, courts

should quit devising ways that remove the issue of con-

18a

tributory negligence from consideration by a jury. (It

would be interesting to see what a jury would do in this

case with the contributory negligence issue. Would the

jury find the railroad negligent based on plaintiff's acts

or omissions and then find plaintiff only 25% contribu-

torily negligent, or would the jury find plaintiff 100%

contributorily negligent?)

There does not seem to be a dispute that the trial

court erred in allowing evidence and giving instructions

late in the trial as to a new theory concern ng irrelevant

OSHA violations. Surely we should r verse on those

grounds alone.

The admission into evidence, by plaintiff, of defend-

ant’s surveillance videotapes of plaintiff raises an inter-

esting issue that, most likely, will increasingly confront

the courts. Plaintiff obviously wished to prejudice the

jury against defendant’s “spying,” and apparently plain-

tiff was successful when one looks at the jury’s veridct

that awarded plaintiff, injured when he was 34, more

than twice the expected lifetime earnings for a better

job than he held, for a disease that many people possess

and overcome, for an injury that plaintiff would even-

tually suffer from regardless of all precautions taken, and

for an injury that did not require surgery and did not

prevent him from being retrained for and procuring a

less strenuous job. Should the courts or the legislature

encourage surveillance to weed out malingering plain-

tiffs, or should the courts discourage surveillance by al-

lowing plaintiffs to use the videotapes merely to show

that defendants “spied” on plaintiffs?

At least three courts have ruled against plaintiffs on the

issue of using defendants’ surveillance against defendants.

(See Hall v. InPhoto Surveillance Co. (4th Dist. April 13,

1995), No. 4-94-0864, slip op.; DiMichel v. South Buf.-

falo Ry. Co. (1992), 80 N.Y.2d 184, 604 N.E.2d 63;

Scaggs v. Consolidated Rail Corp. (7th Cir. 1993), 6 F.3d

19a

1290.) Whether courts should or should not encourage

surveillance by defendants is a public policy question that

should only be decided by the legislature or the supreme

court. Appellate and trial courts should confine them-

selves to only answering the issue of whether the evidence

was relevant.

The problem in this case is that plaintiff did not intro-

duce the videotapes for the purpose of showing a day in

his life; rather, the primary purpose of plaintiff was to

poison the jury against defendant for “spying” on plain-

tiff. If the videotape had shown plaintiff to be suffering

from his injuries, I would have no problem with its ad-

mission by plaintiff. Likewise, if the film had shown

plaintiff playing golf or leaping into his convertible, |

would have no problem with an offer by defendant. Both

Offers by the parties would be relevant to prove or dis-

Prove plaintiff's injuries. In the case at bar, it was

doubtful, however, that the videotapes exhibited either

plaintiff's injuries or the lack thereof. Moreover, whether

or not defendant “spied” did not prove or disprove plain-

tiff's injury or the extent thereof. The issue of “spying,”

even if the videotapes were relevant, should have been

kept out of the trial until we have some direction by the

legislature or the supreme court as to public policy.

Finally, I do not believe that it is fair for either plain-

tiff or defendant to change the theories contained in the

pleadings, either on the day of or during the trial. (If

defendant had been allowed to add an affirmative defense

during the trial citing mandatory compliance with a stat-

ute as authority, we would have reversed in a summary

order.) This is especially true when the party raises Fed-

eral statutes. This court has witnessed an increasing num-

ber of cases where counsel at the last minute raises a

Federal statute and a new theory and talks the trial judge

into giving incomplete instructions as to that Statute to

the jury, and we later discover that the statute does not

even apply. In this case there were OSHA regulations

20a

(29 U.S.C. sec. 651 et seq. (1985)) and the Locomotive

Inspection Act (45 U.S.C. sec. 23 (1986)), both of

which did not apply. We should not be rewarding the

offending party, because all we are doing is encouraging

both plaintiffs and defendants to wait until the last minute

to spring a surprise on their opponents. The courts should

demand and require that the parties define the issues be-

fore trial; otherwise, let us stop deluding ourselves that

the courts wish to remove surprise as an element from

the trial.

Accordingly, I would reverse, as there was very little

about this trial that was fair.

2la

APPENDIX B

ILLINOIS SUPREME COURT

JULEANN Hornyak, CLERK

Supreme Court Building

Springfield, Illinois 82706

(217) 782-3635

October 4, 1995

Mr. Thomas M. Alvey, Jr.

Thompson & Mitchell

P.O. Box 750

Belleville, IL 62222

No. 79251—John Luther, respondent, v. Norfolk and

Western Railway Company, etc., petitioner.

Leave to appeal, Appellate Court, Fifth

District.

The Supreme Court today DENIED the petition for

leave to appeal in the above entitled cause.

The mandate of this Court will issue to the Appellate

Court on October 26, 1995.

22a

APPENDIX C

[Filed Nov. 5, 1992]

IN THE CIRCUIT COURT

FOR THE THIRD JUDICIAL CIRCUIT

MADISON COUNTY, ILLINOIS

No. 90 L 1354

Joun D. LUTHER,

Plaintiff,

v.

NoRFOLK AND WESTERN RAILRCAD COMPANY,

Defendant.

ORDER

At the completion of the jury’s deliberations the fol-

lowing verdict was read in open court: “We, the jury,

find for John Luther on John Luther’s complaint and

against the Norfolk and Western Railway Company. We

further find the following: First: Without taking into

consideration the question of reduction of damages due

to his failure to mitigate damages, we find that the total!

amount of damages suffered by the Plaintiff as a proxi-

mate result of the occurrence in question is $1,850,000.00.

Second: Assuming that 100% represents the total neg-

ligence of the Defendant, we find that the percentage of

Plaintiff's damages due to his failure to mitigate is 15

percent %. Third: After reducing the total damages sus-

tained by the Plaintiff by the percentage attributable to John

Luther’s failure to mitigate damages, we assess the Plain-

tiff's recoverable damages in the sum of $1,572,500.00.”

23a

The Court at this time enters Judgment upon the jury’s

verdict. The Court enters Judgment for the Plaintiff John

Luther and against the Defendant Norfolk and Western

Railway Company in the amount of one million five

hundred seventy-two thousand five hundred dollars

($1,572,500.00) and costs of suit.

Clerk to send copy of this Order to attorneys of record.

Date: November 5, 1992

s/ George J. Moran

GEORGE Moran, Jr.

Circuit Judge

24a

APPENDIX D

[Filed Jul. 8, 1993]

IN THE CIRCUIT COURT

THIRD JUDICIAL CIRCUIT

MADISON COUNTY, ILLINOIS

No. 90-L-1354

JOHN D. LUTHER,

Plaintiff,

V.

NORFOLK AND WESTERN RAILROAD COMPANY,

a corporation,

Defendant.

ORDER

This action comes on to be heard on the Post Trial

Motion of defendant for judgment notwithstanding the

verdict of the jury to set aside the verdict and judgment

and grant defendant a new trial. The parties being rep-

resented by their respective attorneys, and the Court hav-

ing considered the Motion and arguments of counsel, and

being fully advised in the premises, it appears to the

Court that the Motion is without merit.

THEREFORE, IT IS HEREBY ORDERED that de-

fendant’s Post Trial Motion is denied.

SO ORDERED.

ENTER: July 8, 1993

/s/ George J. Moran, Jr.

Judge