Parsons v. Norfolk S. Ry. Co.

2017 IL App (1st) 161384

88 N.E.3d 45

Michael PARSONS, Plaintiff-Appellee,

v.NORFOLK SOUTHERN RAILWAY COMPANY, Defendant-Appellant.

No. 1-16-1384

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed August 25, 2017

Rehearing denied September 27, 2017

Hall, Prangle & Schoonveld, LLC (Hugh C. Griffin, of counsel), Donohue, Brown, Mathewson & Smyth, LLC (Karen Kies DeGrand, of counsel), and Daley, Mohan, Groble, P.C. (Raymond H. Groble III and Jeffrey J. Scolaro, of counsel), all of Chicago, for appellant.

Law Office of Michael W. Rathsack, of Chicago (John M. Power, George T. Brugess, and Michael W. Rathsack, of counsel), for appellee.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.

¶ 1 Plaintiff-appellee Michael Parsons was employed by defendant-appellant Norfolk Southern Railway Company as a railroad conductor since September 2010. Plaintiff was injured at defendant's railyard on September 2, 2011, when his left foot was crushed between the railcar he was riding and a car that he had recently left on an adjacent track. Plaintiff sued defendant for negligence under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq(2006). The following facts are derived from the subsequent jury trial in November 2015.

¶ 2 Defendant operates the 51st/55th Street railyard in Chicago (railyard), where empty intermodal railcars are loaded with shipping containers. Plaintiff's injury occurred at the southern end of the railyard, where several numbered tracks run north from a main "runner track" at the south end of the railyard. Several "switch tracks," with apparatus allowing cars to be routed from one track to another, diverge from the runner.

¶ 3 A number of adjacent tracks run north from the runner track. Depending on the distance between adjacent tracks, there may not be sufficient room for cars traveling on one track to safely pass cars on an adjacent track. The point on each track at which there is sufficient distance for cars to safely pass cars or equipment left on an adjacent track is known as the "clearance point." Defendant's internal documents define a clearance point as "the location on a track that does not obstruct the movement of equipment, including, where permitted, a person riding the side of a car, on adjacent tracks." Tracks 24 and 25 are adjacent tracks stemming north from the runner track. Prior to 2010, the distance between tracks 24 and 25 was at least 12 feet.¹ In 2010, defendant performed work at the railyard, including the replacement of switches and related equipment known as "turnouts." As a result of that work, the distance between tracks 24 and 25 was narrowed, so that at one point the tracks were as close as 10 feet 6 inches apart.¶ 4 Defendant issued a bulletin to employees, effective January 1, 2011, in which "Item 41" stated that:

"All the switches at the south end of 51st [S]treet Yard in Chicago have been replaced. Some of the track configurations and clearance points have been changed. Please take time to note the new track alignments and the new clearance points. All clearance points should be 225 feet (4½ car lengths) from the switch point."

Plaintiff acknowledged at trial that he had read the bulletin. However, he claimed he lacked notice that the distance between tracks 24 and 25 had been reduced to as little as 10 feet 6 inches.

¶ 5 On September 2, 2011, plaintiff and a locomotive engineer, David Compton, were attempting to separate a single car needing repairs from a chain of several railcars. Compton remained in the locomotive and took radio commands from plaintiff.

¶ 6 Plaintiff sought to isolate the car needing repair and to leave it on track 24. From the runner track at the south end of the railyard, plaintiff and Compton moved the chain of cars in reverse, traveling north past the switch point for track 25. Such reverse movements are referred to as "shove" moves.

¶ 7 Plaintiff and Compton separated the last 8 cars of the chain and left them on track 25 between the switch point and the clearance point (that is, south of the clearance point). The portion of a track between the switch and the clearance point is referred to as being "in the lead." Plaintiff and Compton moved the remaining cars south back to the runner track, then "shoved" those remaining cars north on track 24. As the cars moved along track 24, plaintiff rode on the east side of the northernmost car while he directed Compton by radio.

¶ 8 As the cars on track 24 approached the cars that had been left on adjacent track 25, plaintiff's left foot was caught between the car he was standing on and a car on track 25. The distance between the two tracks at that point was 10 feet 6 inches. Plaintiff testified that he could have passed safely if the tracks were farther apart, as they were before the 2010 work.

¶ 9 Plaintiff acknowledged that it was his decision to leave the cars on track 25 "in the lead," south of the clearance point. He also acknowledged that the clearance points on tracks 24 and 25 were marked with bright orange paint. However, plaintiff maintained that it was custom and practice at the railyard to temporarily leave cars south of the clearance point. He agreed that, "when switching moves are done" or if he "was leaving for the day," it would not be permissible to leave a car between the switch and clearance point. However, he testified that during switching moves, it was "standard operating procedure" to temporarily leave a car in the lead.

¶ 10 Plaintiff also testified that it was common practice for conductors to ride on the side of cars between switches and clearance points. Plaintiff acknowledged he was aware of a separate bulletin issued by defendant which stated that "Employees are prohibited from riding the sides of cars" in certain locations, including the "Body of yard, Scale track through Track 34, due to insufficient track centers." Plaintiff also acknowledged that, in February 2011, he took a test administered by the defendant, in which he correctly answered "no" to the question: "Are employees allowed to ride the sides of equipment within the body of the yard ***?" Plaintiff admitted that it was a company rule that "there is no riding in the body of the yard." However, he testified that it was never explained to him what "body of the yard" meant and claimed that he did not violate the company rule.

¶ 11 Plaintiff also explained that, under the "radio rule," an engineer must stop the train once it reaches half the distance ordered by the conductor's last command if the engineer has not received a subsequent radio command. Plaintiff testified that, just before his injury, he had directed Compton to "shove" five car lengths, and so Compton should have stopped after 2 ½ car lengths. Plaintiff testified that Compton did not do so, violating the radio rule.

¶ 12 Plaintiff called three fact witnesses who worked as conductors at the railyard: Don Myers, Randy Fitzgerald, and David Orona. Consistent with plaintiff's testimony, those witnesses agreed that it was custom and practice to leave cars temporarily on the portion of a track between the switch and the clearance point, as plaintiff had done on track 25. Those witnesses also agreed that it was customary for conductors to ride cars in that area. They also testified that the term "body of the yard" refers to the portion of track north of the clearance points, but does not include the area between switches and clearance points.

¶ 13 Plaintiff's expert witnesses included Alan Blackwell, who opined that the distance between tracks 24 and 25 violated Illinois Commerce Commission (ICC) regulations, specifically section 1500.140 of the Administrative Code (Code), which requires tracks constructed or reconstructed after 1920 to have at least 13½ feet between adjacent tracks. 92 Ill. Adm. Code 1500.140, amended at 29 Ill. Reg. 20360 (eff. Dec. 15, 2005). Although Blackwell acknowledged that the railyard was built before 1920, he opined that section 1500.140 of the Code applied because the 2010 work at the railyard constituted "reconstruction." Blackwell opined that prior to 2010, there had been sufficient clearance between tracks 24 and 25, but that the reconstruction work caused a dangerous "pinch point."

¶ 14 Plaintiff also called Colon Fulk as an expert on railroad operating practices. Fulk testified that Compton had violated the "radio rule" codified in Title 49, Part 220 of the Code of Federal Regulations.² Fulk also opined that it was acceptable for plaintiff to leave cars on track 25 south of the clearance point.

¶ 15 Dr. Grevious, plaintiff's reconstructive surgeon, testified that plaintiff's heel bone was "broken completely off" and the "bottom of the foot was basically peeled off of the foot." Dr. Grevious described numerous surgeries, including a surgery transplanting flesh from plaintiff's thigh to reconstruct the heel. Dr. Grevious explained that, in 2013 and 2014, there were several occasions where the wound reopened, requiring plaintiff to avoid bearing weight on his left foot. Dr. Grevious agreed that plaintiff would be at risk for infection and amputation for the rest of his life.

¶ 16 Plaintiff also called Dr. Dennis Gates, an orthopedic surgeon, who offered expert testimony based on his review of plaintiff's medical records and examinations of plaintiff. He opined that plaintiff suffered from a chronic infection, which caused recurring episodes where the wound reopened. Dr. Gates stated that plaintiff would have "ambulation problems for the rest of his life" and a number of other chronic conditions as a result of the injury.

¶ 17 Margo DiVenere, a nurse case manager, testified that she helped coordinate plaintiff's care since the injury. She described a number of instances where the wound reopened and became infected, during which times plaintiff could not bear weight on his left foot. She agreed that, for the majority of time since the injury, his wound was not fully closed.

¶ 18 Plaintiff described his injury...