{ "id": 5653510, "name": "Edward Hayes, Appellee, v. New York Central Railroad Company, Appellant", "name_abbreviation": "Hayes v. New York Central Railroad", "decision_date": "1946-05-06", "docket_number": "Gen. No. 43,596", "first_page": "631", "last_page": "644", "citations": [ { "type": "official", "cite": "328 Ill. App. 631" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "325 Ill. App. 576", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4949072, 4949931 ], "opinion_index": 0, "case_paths": [ "/ill-app/325/0576-02", "/ill-app/325/0576-01" ] }, { "cite": "86 Ill. App. 257", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5272460 ], "opinion_index": 0, "case_paths": [ "/ill-app/86/0257-01" ] }, { "cite": "185 Ill. 546", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3223739 ], "opinion_index": 0, "case_paths": [ "/ill/185/0546-01" ] }, { "cite": "271 U. S. 472", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1276166 ], "opinion_index": 0, "case_paths": [ "/us/271/0472-01" ] }, { "cite": "279 U. S. 310", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3906048 ], "pin_cites": [ { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/us/279/0310-01" ] }, { "cite": "283 U. S. 520", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 434433 ], "opinion_index": 0, "case_paths": [ "/us/283/0520-01" ] }, { "cite": "336 Ill. 11", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5231735 ], "pin_cites": [ { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/ill/336/0011-01" ] }, { "cite": "314 Ill. 449", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5130119 ], "opinion_index": 0, "case_paths": [ "/ill/314/0449-01" ] }, { "cite": "148 F. (2d) 1", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3655882 ], "opinion_index": 0, "case_paths": [ "/f2d/148/0001-01" ] }, { "cite": "244 Ill. 244", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3411209 ], "pin_cites": [ { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/ill/244/0244-01" ] }, { "cite": "321 U. S. 29", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 301855 ], "pin_cites": [ { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/us/321/0029-01" ] }, { "cite": "320 U. S. 476", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6142765 ], "pin_cites": [ { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/us/320/0476-01" ] } ], "analysis": { "cardinality": 996, "char_count": 21659, "ocr_confidence": 0.522, "pagerank": { "raw": 1.0972718663311335e-07, "percentile": 0.5671873147816726 }, "sha256": "cec2ade973e40ecd1a8498425e949389d2acf72cf70213e8529afb702fdb67cd", "simhash": "1:742f9eed96e98de9", "word_count": 3777 }, "last_updated": "2023-07-14T20:54:07.766250+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Edward Hayes, Appellee, v. New York Central Railroad Company, Appellant." ], "opinions": [ { "text": "Mr. Presiding Justice Matchett\ndelivered the opinion of the court.\nThis is an appeal by defendant from a judgment for $30,000 in favor of plaintiff, entered on the verdict of a jury in an action at law based on the Federal Employers \u2019 Liability Act (45 USCA \u00a7\u00a7 51\u201459, \u00a7\u00a722-34 Federal Boiler Inspection Act, with amendments).\nThe occurrence on which the action was based took place at Sheff, Indiana, February 19, 1944. The complaint, filed December 29, 1944, alleged defendant was negligent in failing to provide safe appliances with which to work, particularly \u201cin furnishing the plaintiff with an old, worn-out locomotive on which the grate shaker apparatus would lock suddenly while being operated,\u201d which defendant \u201cwell knew or should have known.\u201d\nPlaintiff was practically the only occurrence witness. He lived in Indianapolis and was employed by defendant as a fireman. He, with his crew, Gavigan, engineer, and Roberts, brakeman, was ordered- to make a run from Indianapolis to Kankakee, Illinois.' A later order changed the destination of the train to Sheff, Indiana. Plaintiff was on engine No. \"2313 of the H-10 type. At Altamont, Indiana, they took on coal and water. While whiting for orders plaintiff says he tried to shake the grates and found them stiff. He told G-avigan the grates were \u201cshaking hard.\u201d Gavigan said to wait until they got to Sheff and he would help. They got to Sheff about 7 or 8 o\u2019clock in the morning. The crew were switching, making up the train for its return trip. The engine was moving at a speed of about 3 or 4 miles an hour. Plaintiff prepared to clean the fire. He says the grate shaking apparatus was about the same on all H-10 type engines. It consisted of a shaker bar about 2% to 4 feet long and shaker arms covered with housing. He opened the housing, reached down inside and unlocked the lock that held the arm secure, and placed the shaker bar in the shaker arm. The free end of the lock was lifted up and leaned back against the frame of the engine. Most of the H-10 type engines had safety latches to prevent the worn locks from falling down. Plaintiff says defendant had not so provided for this engine.\nPlaintiff, as he operated the grates, was in a standing position. His left foot was between the fireman\u2019s seat and the brakeman\u2019s seat, which were about a foot apart. His right foot was over the brakeman\u2019s box seat. Plaintiff bent over, his head about even with his knees. He tried to lift up the shaker bar. He felt the grates were tight. He let the bar down to the floor, came up again as hard as he could. Plaintiff says: \u201cWhen we were going down number 2 and 3 track, making three or four miles an hour, I prepared to clean my fire, and that is when I hurt my back. I got my shaker bar out, took the housing off, took the cover back, put the shaker bar on there, lifted the lock up and tried to shake it. I got in a position \u2014 you do not face the boiler but, you face the engineer when you are shaking the grates, and one foot was between the fireman\u2019s pedestal seat, a distance of approximately about a foot and the brakeman\u2019s seat, box seat; and the right foot was over the brakeman\u2019s box seat. That is all the room you have there. And as I was bent away over, and I tried to lift up on the shaker bar, and I felt they were kind of tight, so I let it clear back down to the floor, and I went to come up again as hard as I could, and it just seemed like 1 hit a brick wall. I just stopped everything. I felt a tear from the end of my spine clear to the back of my head. I looked to see what caused \u2014 The lock had fell down. It was not usual and customary for that lock to fall down. As to what caused it to fall, well, it was wore out, I suppose. \u2019 \u2019 The Court: \u2018 \u2018 The \u2018 suppose\u2019 may be stricken.\u201d\nPlaintiff told Gavigan he had hurt his back. He did not finish cleaning the fire. Gavigan did that for him. Gavigan and Roberts did most of his work on the way back to Indianapolis. There he went to the road foreman\u2019s office to report the accident and found it closed. Another fireman went home with him, and he went to bed. The complaint charged a fracture of the fourth lumbar vertebra of the plaintiff\u2019s spine.\nDefendant\u2019s first contention is that the verdict is against the manifest weight of the evidence. As we have already said, plaintiff was practically the only occurrence witness. He told just how the accident happened, as above recited. He has not worked since. Plaintiff\u2019s uncontradicted evidence showed that Gavigan, the engineer, was present when he was injured and that Gavigan and Roberts on the trip back to Indianapolis performed the services plaintiff would ordinarily perform. At the trial Gavigan and Roberts were present in the corridor of the courtroom but not called as witnesses and returned to Indianapolis without testifying. Plaintiff\u2019s attorneys strongly argued to the jury that the failure of defendant to call rHese witnesses corroborated the version of the occurrence as given by plaintiff. Whether this was true or not it left the narration of plaintiff uncontradicted by witnesses who were available, and under the orders and directions of defendant. That this had much influence in bringing about the verdict of the jury we do not doubt.\nDefendant put in other evidence for the purpose of impeaching the testimony of plaintiff. A boilermaker, who inspected the shaking apparatus before it was taken on the trip to Sheff, and another boilermaker, who inspected it soon after the return from that trip, (both employees of defendant) testified their inspection of the shaking apparatus, disclosed there was nothing wrong with it.\nGoodyear, road foreman of engines for defendant at Indianapolis, and Pischner, a clerk in the office of Goodyear, testified plaintiff was asked to make out an accident report when he called at Goodyear\u2019s office about a week after the accident, and that plaintiff replied an accident report was not necessary as there was nothing about the engine or condition of the engine that caused his injury. Pischner also said that plaintiff then told him that his doctor had advised him that he was suffering from a bad kidney condition. Goodyear gave testimony to the same effect. Plaintiff denied making these statements.\nDefendant offered in evidence a written statement signed by plaintiff. \u2022 It was received in evidence by agreement, and defendant argues it tends to impeach the testimony of plaintiff. It is a typewritten statement dated March 8,1944, at Indianapolis, and marked Al, A2 and A3. It covers three typewritten pages. It is signed by plaintiff and also by his wife. At the bottom of the third page defendant wrote: \u201cI have read this 3 page statement and it is correct to my knowledge.\u201d The statement was written by Self, claim agent of the defendant. Plaintiff was cross-examined at length on it. He admitted some of the statements in the paper and denied others.\nNear the close of the trial, Dawson, an employee of defendant, (called by plaintiff) whose job was to work at the roundhouse in Indianapolis on the cinder pit as, what he called, a \u201cfire knocker\u201d and shake the fire out of the railroad engine as it came off the road and get it right for the fireman in the roundhouse, was allowed to testify that on February 19, 1944, he held that job. He testified: \u201cThe bolt is worn, and it won\u2019t hold back. The minute you come up with the shaker bar, it will either hit the back point or front point of the lug and it will drop it down on the shaker staff . . . .\u201d On cross-examination he testified he lived in Indianapolis but was ordered \u201cup here\u201d by his lawyer, Mr. Murray, who was attorney for plaintiff.\nThe weight to be given to the evidence concerning the written statement was, we think, peculiarly for the jury. The exhibit was written by an agent of defendant. We have read these and the cross-examination and are still impressed (as we think the jury was) with the fact occurrence witnesses, apparently brought from Indianapolis, went back without being called to contradict plaintiff as to the occurrence. Testimony of plaintiff not denied by Gravigan, Roberts or Self, who drew the typewritten statement, does not commend the .defense of defendant on the facts. We have not been convinced by defendant\u2019s able brief that we should hold this verdict and judgment to be, on the issue of liability, against the weight of the evidence. The sufficiency of the evidence was a Federal question. Brady v. Southern Ry. Co., 320 U. S. 476, 479. Under the circumstances here disclosed, this court would have no right to substitute its own conclusions for those of the jury. Tennant v. Peoria & P. U. Ry. Co., 321 U. S. 29, 32. This first contention is not sustained.\nDefendant\u2019s second point is that the damages are excessive. The amount allowed is large. Plaintiff\u2019s earnings for the year 1943 were $2,966.66. From January 1 to February 18, 1944, he earned $625. Plaintiff testified that he endured considerable pain. His conduct just after the accident did not indicate quite as severe an injury as is now claimed. Plaintiff says: \u201cI couldn\u2019t say I remained on the engine after I strained my back, during all the process of making up the train and going back to Indianapolis from Sheff. I might have got down on the ground. . . . I took water, much to my sorrow.\u201d The words \u201cmuch to my sorrow\u201d were stricken. Here we miss testimony by Gavigan or Roberts. Plaintiff was a strong man. At one time he was a prize fighter. Twice he passed successfully physical tests required by defendant of those in its service. While working for Kingen & Company he complained of having hurt his back in carrying a quarter of beef. From April 1935,\u2019 to June 1941, while working for Kingen, he complained of 64 minor accidents.\nPlaintiff\u2019s attitude as to medical attention immediately. after the occurrence does not indicate such serious injury as is now claimed. The occurrence took place on Saturday morning. Plaintiff reached home a little after noon and went to bed. On Monday he went in a cab to see a chiropractor by whom he had been treated several times before. The chiropractor put hot towels and crushed ice on his back. He saw this chiropractor every day from February 21 until June 10 and received this hot and cold pack treatment. The chiropractor advised x-rays, which were taken but not produced at the trial. Plaintiff\u2019s written statement indicates the chiropractor said he had \u201cspinal distortion and congestion in the lower back.\u201d Plaintiff saw \u201cthe old family physician,\u201d Dr. Colloden. He says' the doctor gave him a prescription for \u201cpain pills, \u2019 \u2019 which he filled at a drugstore. Plaintiff says: \u201cHe is a medical doctor. He didn\u2019t give me any treatment. I went to him several times. He cut me off.\u201d\nJune 12, 1944, plaintiff saw Dr. Greenspahn, who took x-rays of his hack. Dr. Greenspahn says he found the muscles in the center of the spine \u20181 spastic. \u2019 \u2019 He says the x-ray of June 12 showed the right side of the fourth lumbar vertebra narrower than the left side. This, he said, could have been a congenital condition ; it could also have been caused by trauma. The doctor, replying to a hypothetical question, said: \u201cI cannot state with a reasonable degree of medical and surgical certainty as to just what will develop in the future.\u201d\nPlaintiff saw at many times doctors provided by the defendant company, Drs. Ensminger, Beeler, Bitchie and Oldberg, all of whom testified\" in behalf of the defendant. It would serve no useful purpose for this court to discuss the evidence of the experts in detail and thus extend the opinion beyond reasonable length.\nThe brief of defendant, we think, summarizes well the testimony in regard to the extent of plaintiff\u2019s injury. It says:\n\u201cIt will thus be noted that four outstanding doctors found nothing wrong with plaintiff except his own complaints of pain, as against which there is Dr. Greenspahn\u2019s statement that the narrowing of one side of the fourth lumbar vertebra might or could have been caused by trauma; and even he testified that the condition could be congenital so far as the x-ray he was then looking at was concerned. Greenspahn\u2019s opinion was based on x-rays taken June 12, 1944, whereas defendant\u2019s medical witnesses based their testimony not only on those x-rays but also on three other sets of x-rays, one taken three weeks after the alleged accident, one eight to nine months after that event and one almost a year after the alleged accident, and were thus able to support their opinion by the absence of anything in the later x-rays showing that there had been a healing process in the interim. Moreover Dr. G-reenspahn refused to state \u2018one way or the other \u2019 whether the condition described in the hypothetical question was temporary or permanent.\u201d\nThe courts of Illinois and Federal courts, also, hold that damages allowed may not be purely speculative. It is sufficient to cite these cases: Lauth v. Chicago Union Traction Co., 244 Ill. 244, 252, and Shelton v. Thomson, 148 F. (2d) 1. We hold that the damages allowed are excessive to an extent that would require a substantial remittitur.\nHowever, the judgment in this case must be reversed on account of improper and prejudicial conduct of plaintiff\u2019s attorney. The general rule is that a judgment obtained by appeals to passion and prejudice and unfair conduct of the plaintiff\u2019s attorney will be reversed and remanded for another \"trial. People v. Bimbo, 314 Ill. 449; Coal Creek Drainage S Levee Dist. v. Sanitary Dist. of Chicago, 336 Ill. 11, 45. The Federal courts enforce the rule quite strictly. In Minneapolis, St. P. & S. S. M. R. Co. v. Moquin, 283 U. S. 520, the Supreme Court of the United States said:\n\u201cIn actions under the federal statute no verdict can be permitted to stand which is found to be in any degree the result of appeals to passion and prejudice. \u2019 \u2019\nIn New York Cent. R. Co. v. Johnson, 279 U. S. 310, 318, the same court said:\n\u201cThe public interest require that the court of its own motion, as is its power and duty, protect suitors in their right to a verdict uninfluenced by the appeals of counsel to passion or prejudice.\u201d\nSee also Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U. S. 472.\nThe question here as to the liability of defendant was close. It was the duty of the trial court to see that the conduct of those taking part in the trial should be free from attempts to appeal to passion and prejudice. The court did not perform his duty in this respect.\nDefendant\u2019s exhibit No. 4, for identification, was a written statement prepared by Mr. Pischner of the defendant company. It was offered and excluded. Plaintiff\u2019s attorney volunteered: \u201cI have no objection. . . . Let the jury see how they make out their reports.\u201d Later defendant again offered the exhibit, and plaintiff objected on the ground it was self-serving. He added that there were erasures and corrections on the face of it. Defendant\u2019s attorney objected to this statement. Plaintiff\u2019s attorney replied: \u201cTes, there is.\u201d Attorney for defendant said: \u201cWell, let the jury see it, then.\u201d Plaintiff\u2019s attorney answered: \u201c. . . I will let the jury see the erasures and corrections, if you have the nerve to do it.\u201d Defendant\u2019s attorney: \u201cWait a minute, wait a minute.\u201d Plaintiff\u2019s attorney: \u201cHe has offered to do this. Now, who is lying?\u201d Defendant\u2019s attorney: \u201cHigh blood pressure here.\u201d Plaintiff\u2019s attorney: \u201cYes, high blood pressure. Now, wait a minute. You are lying right in the presence of this jury.\u201d Defendant\u2019s attorney: \u201cJust a moment.\u201d The Court: \u201cLet me see the erasures. I don\u2019t know whether there are any.\u201d Plaintiff\u2019s attorney: \u201cYes, your Honor, they have been corrected.\u201d The Court: \u201cI didn\u2019t see any.\u201d Attorney for defendant then said: \u201cPardon me, your Honor, until I make my point now. Now, I object to the conduct of counsel in coming up here to the witness stand, grabbing this paper, this document, Defendant\u2019s Exhibit 4, out of my hand and exhibiting it to one of these jurors; shouting about the question of erasures on here when he has absolutely refused to let this document go to the jury.\u201d Attorney for plaintiff: \u201cHe says let the jury see the correction and I did.\u201d The document was again ruled by the court to be inadmissible. It is in the record. There is apparent on the face of it minor changes, none tending to prove bad faith on defendant\u2019s part.\nIn his argument to the jury, attorney for plaintiff said: \u201cHe (plaintiff) said he never told him anything of the sort. \u2018The report was not made out in my presence,\u2019 and because there is an error on minor things which might hurt, counsel tells you there were no corrections in that report, and stands in front of you and says there weren\u2019t. I submit to you there were corrections in that report and there were erasures, minor little things, but they wouldn\u2019t be what the man had told him, so they corrected those details. Now, I submit to you whether counsel was telling you the truth or not, when he makes that statement in your presence \u2014 well, let\u2019s get on.\u201d\nLater in the argument defendant\u2019s counsel referred to a statement made to Pischner. Plaintiff\u2019s attorney interrupted: \u201cNow, I am going to object to counsel putting up any phoney report made out by the railroad company out of the presence of this man.\u201d\nIn his final argument plaintiff made this plea: \u201cAgain, a family man with three children going for a period of inore than a year, walking around with a brace on his back, running to railroad doctors whenever they called him when he didn\u2019t have to do it . . . He is going to have with the best of circumstances to get out there to support that wife and three kids.\u201d\nIn beginning his argument plaintiff\u2019s attorney said: \u201cYou are to use your own judgment in deciding whether Edward Hayes is a faker or not. That is the crux of the situation in this case.\u201d Later, he said: \u201cWho called who a crook? I didn\u2019t say they were crooks. The only one called a crook in this case is the plaintiff, Edward Hayes. . . . Look at Ed Hayes. If he looks like a crook to you and this lawsuit says he is a crook, and if this record says he is dishonest and endeavoring to put over a dishonest claim in this case, I submit' to you, I ask you to go down in the bottom of your hearts and figure out if that is the type of case this is and the type of man he is and say this man\u2019s actions brought about this case.\u201d\nIt is not necessary to consider other similar remarks by attorney for plaintiff. He states his position: \u201cPlaintiff\u2019s counsel had one of two choices: 1. Introduce his direct evidence showing liability and the extent of plaintiff\u2019s injuries and sit down calmly and allow the defendant to establish by innuendo, by parading incompetent evidence before the jury, and by questionable, extra-judicial statements, the theory on which defense counsel tried the lawsuit: That there was no accident, and no injuries and that plaintiff was faking the whole case. 2. Put in his direct and positive evidence and aggressively tear that theory apart, and beat, the defendant at its own game. Plaintiff\u2019s counsel, in the exigency of the trial, chose course number 2. That is all that happened in this case. \u2019 \u2019\nPlaintiff cites Maxwell v. Durkin, 185 Ill. 546, affirming 86 Ill. App. 257. There the attorneys on both sides were said to have been guilty of unbecoming conduct for which they should have been punished, and the judgment was affirmed for the reason that the conduct of each was reprehensible. Attorney does not point out in this record conduct of the attorney for defendant similar to his own. He compares defendant\u2019s attorney, . figuratively speaking, with \u2018 \u2018 Groliath advancing with shield and sword against the slim David,\u201d who chose as a weapon \u201chis sling and a smooth stone from the brook.\u201d That occurrence was not in a court of justice.\nA judgment obtained by conduct of the kind recited will not be allowed to stand in the courts of this State or in the Federal courts.\nAs the cause must be tried again, we will comment on the instructions. Defendant argues every one given for the plaintiff to be erroneous. No. 1 is not. It merely states the well known rule the preponderance of the evidence does not mean necessarily \u201cbeyond a reasonable doubt.\u201d Instructions 2, 3 and 4 are in the language of the statute and in each the title of the statute (not a part of it) is included. We disapproved of this kind of instructions in this class of cases in Spiering v. Chicago & E. I. R. Co., 325 Ill. App. 576. Plaintiff\u2019s instruction No. 6 is subject to criticism in that it allows recovery for \u201cfuture loss of health,\u201d \u201cfuture suffering,\u201d \u201cfuture loss of earnings.\u201d It also directs the jury to determine \u201cthe present value of the total amount of,such future loss of earnings\u201d without stating a formula or rule by which the jury could make the computation, even if there had been evidence to support such allowance. Instruction No. 8 also tells the jury that in determining damages the jury should take into consideration \u201cpermanent disability\u201d and \u201cfuture pain and suffering.\u201d It also directs the jury to compute \u201cthe present value of future loss of earnings\u201d without giving any rule by which the jury could make such computation.\nFor these errors the judgment will be reversed and the cause remanded.\nReversed, and remanded.\nO\u2019Connor and Niemeyer, JJ., concur.", "type": "majority", "author": "Mr. Presiding Justice Matchett" } ], "attorneys": [ "Sidney C. Murray, William A. Morrow and Marvin A. Jersild, all of Chicago, for appellant.", "Edward B. Henslee, of Chicago, for appellee; Melvin L. Griffith and Walter N. Murray, both of Chicago, of counsel." ], "corrections": "", "head_matter": "Edward Hayes, Appellee, v. New York Central Railroad Company, Appellant.\nGen. No. 43,596.\nOpinion filed May 6, 1946.\nReleased for publication May 27, 1946.\nSidney C. Murray, William A. Morrow and Marvin A. Jersild, all of Chicago, for appellant.\nEdward B. Henslee, of Chicago, for appellee; Melvin L. Griffith and Walter N. Murray, both of Chicago, of counsel." }, "file_name": "0631-01", "first_page_order": 651, "last_page_order": 664 }