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CHARLES R. LAMBERT v. ILLINOIS CENTRAL GULF RAILROAD COMPANY

JULY 12, 1989

CHARLES R. LAMBERT
v.
ILLINOIS CENTRAL GULF RAILROAD COMPANY



BEFORE DAN LEE, P.J., ANDERSON AND BLASS, JJ.

ANDERSON, JUSTICE, FOR THE COURT:

On April 4, 1985, Charles R. Lambert (Lambert) filed suit in the Circuit Court of Warren County against Illinois Central Gulf Railroad Company (Illinois Central or the railroad) alleging a cause of action under the Federal Employers' Liability Act (F.E.L.A.), 45 U.S.C.A., 51, et seq., by virtue of Illinois Central's negligence in failing to provide him a safe place to work and alleging damages in the amount of $882,000.00. On May 9, 1986, Lambert filed an amended complaint adding a claim under the Federal Safety Appliance Act (F.S.A.A.), 45 U.S.C.A., 1-16, alleging a failure to equip its train with properly functioning brakes. The case went to trial on February 23,

1987. At the conclusion of Lambert's case-in-chief, the trial court granted the railroad's motion for a directed verdict on the F.S.A.A. claim. On February 26, 1987, the jury, having been presented with only the F.E.L.A. negligence claim, returned a verdict in favor of the railroad, finding by special interrogatory that the railroad had not been negligent. On appeal, Lambert asserts that the trial court erred in directing verdict on the F.S.A.A. claim. He also challenges an evidentiary ruling and the grant of a defense instruction. In affirming, we address only the issue of whether directing verdict was appropriate.

 I.

 On October 9, 1984, Lambert was employed by Illinois Central as a brakeman and with a crew of three other men had been assigned a run from McComb, MS, to Baton Rouge, LA., scheduled to leave McComb around 5:30 p.m. They coupled up about ten cars from Track 1 in the McComb station's South Yard and proceeded to couple about 60 more cars from Track 4. Since there was a light rain, Lambert volunteered to perform the brakeman duties alone and sent the other brakeman back on the train.

 That brakeman, Thomas Watts, testified that the brakeman's job, as he watches the cars pull out, is to check for" faulty equipment; sticking brakes. "Watts then said that the brakeman would be checking for" sticking air brakes or dragging brake rig. . . .a car leaking. . . "because" a sticking brake or joint squealing or something like that could cause a derailment on down the road. . . "In the South Yard of the McComb station," they "usually set the hand brakes on the first 3 or 4 cars waiting to be connected to a train so that the cars would not roll out of the yard. After the brakeman has made sure that the coupling has been successful and has connected the air hoses for the air brakes (which are then controlled by the engineer), the brakeman checks the hand brakes on those first few cars and releases them if necessary. On cross examination, Watts indicated that a squealing brake meant that the hand brake was still on to some extent and needed to be released by turning the wheel on the car.

 Lambert's version of the accident is that when they got to Track 4 he made the coupling, connected the air hoses under each couple, knocked the hand brakes off of the first 3 or 4 cars and told the engineer to move them on out. As the train pulled out Lambert was standing on the end of a cross tie on the edge of Track 3. When asked how he fell Lambert stated:

 Well, I heard something squealing and I thought it was a brake. And I made a step closer to the train so I could knock it off. And I tripped over something

 and fell forward and the next thing I knew I was hurt.

 Lambert also stated that it seemed to him that he tripped over something as soon as he started stepping. He said" My foot just stopped. I hit something solid. I don't know what it was. "Lambert fell forward into the train and the wheels ran over his left hand resulting in the loss of his three middle fingers.

 On cross-examination, Lambert agreed with defense counsel that he could not say whether the squealing sound was an air brake, a hand brake or some other type of squealing sound. He also agreed that, if it had resulted from a hand brake being on, that would indicate that the hand brake was operating properly, doing what it was designed to do. On redirect, Lambert testified that he could not distinguish between the squealing of a hand brake and the squealing of an air brake.

 Ferrell Vincent, a retired railroad safety inspector with the Federal Railroad Administration, testified as the plaintiff's expert in the general field of railroad safety. After assuming that the hand brakes and air brakes were inspected after the accident, Vincent gave his opinion that the squealing noise had to be" a sticking air brake or a slow releasing air brake. "His opinion was based on the fact that air brakes are designed to release 45 seconds after the engineer activates the releasing mechanism and if it takes longer than that a defective control valve or improperly lubricated rod or cylinder head is indicated. There was no testimony on how long the engineer waited after disengaging the air brakes before moving the train. On cross, Vincent admitted that one cannot tell the difference between a squealing hand brake and a squealing air brake and that if a hand brake had been left on and was squealing it would be operating properly. Vincent never examined the train and the plaintiff offered no proof that the air brakes were inspected before or after the accident.

 The parties stipulated to the introduction of one sentence from the deposition of a superintendent, who inspected the train sometime after the accident. The superintendent stated that, as they walked the track, they did not wind and release each hand brake, but visual inspection indicated that the brakes were released. ...


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