Railroad Accident

Injured Railroad Worker Asks High Court to Reinstate Full Award

By Min Lee ~ Law Bulletin

SPRINGFIELD- A downstate attorney asked the Illinois Supreme Court to restore a railroad conductor’s full compensation for a work-related accident, in a case testing the bounds of contributory negligence.

In a petition for leave to appeal filed this week, Wood River attorney Gail G. Renshaw argued that by throwing an unlubricated switch with extra force, her client, Ricky D. Foutch, was doing his job and not acting carelessly.

Renshaw made a distinction between contributory negligence and assumption of risk. Contributory negligence is A a careless act or omission on the plaintiff’s part tending to add new dangers to conditions that the employer negligently created or permitted to exist, she said.

However, Renshaw said assumption of risk entails A an employee’s voluntary, knowledgeable acceptance of dangerous conditions that is necessary for him to perform his duties.

The defendant, Missouri Pacific Railroad Co, argued that Foutch used excessive force to throw the switch and, therefore, was partly responsible for his own injury.

But Renshaw said her client is required as part of his duties to throw the many unlubricated switches in the East St. Louis Yard, even if it requires extra force.

A That is the classic assumption of risk situation, she argued.

And, Renshaw said, the railroad company did not meet the necessary burden of proof for a jury verdict on contributory negligence by merely trying to discredit Foutch’s testimony.

A Where there is nothing other than the disbelief of plaintiff’s testimony, it is for the court to decide the contributory negligence as a matter of law, because the burden of proof is on the defendant; disbelief of plaintiff does not satisfy that burden, she wrote, citing Luther v Norfolk and Western Railway Co., 272 Ill. App.3d 16, 649 N.E.2d 1000 (5th Dist. 1995)

No one witnessed the September 1999 accident.

Foutch’s injury required surgical removal of discs in his back and neck. After surgery, a vocational rehabilitation specialist determined Foutch could not return to his job.

Upon inspection, an expert witness retained by Foutch concluded that the switch he was throwing was not properly maintained.

Foutch sued for damages under the Federal Employer’s Liability Act. A St. Clair County jury found in favor of the injured worker and awarded him $1,323,250 in damages. But the jury also found Foutch 38% negligent and reduced the award by $500,000.

Foutch then filed a post-trial motion asking the court to set aside the finding of contributory negligence. St. Clair County Circuit Judge Roger M. Scrivner granted the motion and restored the full award. But a panel of the 5th District Appellate Court reversed Scrivner and reduced the award again.

The case is Ricky D. Foutch v. Missouri Pacific Railroad Company d/b/a Union Pacific Railroad Company, No 94042.