Illinois Court Rules Train “In Use” and Contributory Negligence Does Not Apply – $500,000 Verdict in Balough v. Northeast Illinois Regional Commuter Railroad Corporation

An Illinois Appellate Court was asked to evaluate whether a trial judge correctly adjusted a Cook County jury’s verdict in a Federal Employers Liability Act (FELA) lawsuit. The jury had originally reduced the plaintiff’s award by 40% for what it determined was his contributory negligence; however, the trial judge later ruled that contributory negligence did not apply because of the unique circumstances of the lawsuit. The appellate court agreed with the trial judge, backing up his decision to restore the original $500,000 verdict to the plaintiff in Harry Balough v. Northeast Illinois Regional Commuter Railroad Corporation, etc., No. 1-09-3053.

The original FELA lawsuit was brought after Balough, a locomotive driver, became injured in a Chicago rail yard. Balough was boarding an engine to prepare the trains for service when a trapdoor he was standing on gave way, hitting Balough on his head. Prior to stepping onto the trapdoor Balough testified that he had followed the railroad’s rules regarding trapdoor use by first giving the door a horizontal tug prior to boarding. Balough further testified that when he did so the latched seemed firmly latched.

Yet, the trapdoor still failed, causing Balough to require stitches to his head. In addition, shortly after returning to work after the train accident, Balough began suffering from blurred vision and migraine headaches. He continues to experience both of these symptoms on a regular basis and has since been removed from his position as a locomotive driver and placed on permanent disability.

Balough filed a lawsuit against Metra alleging that it had been in violation of the Locomotive Inspection Act (LIA) and was negligent for failing to properly maintain the door latch and warn the plaintiff of its defect. The LIA is a supplemental law to the FELA and is meant to add extra protection for railroad workers operating trains that are “in use.” However, “in use” does not necessarily mean a train is physically moving at the time, but can also apply to those trains which will soon be traveling.

In order to determine whether the plaintiff could bring a LIA claim, Metra asked the trial judge to rule on whether the train in question was actually “in use” as defined by the LIA. The trial judge determined that it was in fact in use and therefore supplied the jury with special jury instructions to help them make a ruling as to the LIA counts.

One of these special interrogatories asked the jury, “Did Metra violate the Locomotive Inspection Act?,” to which the jury responded, “Yes.” This interrogatory was then followed up with another special interrogatory that asked, “Did Metra’s violation of the Locomotive Inspection Act cause or contribute to Plaintiff’s injuries?,” to which the jury also answered in the affirmative.

It is important to note that if a railroad is found guilty of violating the LIA, then the railroad is automatically liable, which means there is no reason to consider the degree of contributory negligence. However, the jury did, determining that the plaintiff was 40% responsible for his own injury, thereby reducing the $500,000 verdict to $300,000.

The plaintiff highlighted this inconsistency in a motion to the circuit court judge, arguing that the LIA jury instruction superseded the jury’s contributory negligence decision and that the original verdict should be restored. The court agreed, modifying the jury verdict so the plaintiff received the full $500,000 as a result of his personal injury claim.

However, Metra appealed this decision to the Illinois Appellate Court on the grounds that the train was not “in use” at the time of plaintiff’s injury and therefore LIA should not apply. In its motion, Metra cited two Illinois lawsuits from the 1940s and 1950s, Lyle v. Atchison, T. & S.F. Ry. Co. and Tisneros v. Chicago & N.W. Ry. Co.. Both of these decisions as to whether or not a train was “in use” were decided in the Seventh Circuit Court; however, Balough was brought in the Fourth Circuit Court.

Therefore, rather than relying on Metra’s citations, the Illinois Appellate Court elected to refer to the most recent Supreme Court decision on the issue, Brady v. Terminal R.R. Ass’n of St. Louis, 303 U.S. 10. Under Brady, a train is considered in use as long as the locomotive would continue on to its next destination after passing the necessary inspection.

The train on which Balough was injured had passed inspection and was actually being prepared to leave the railroad yard at the time of Balough’s injury. Therefore, applying the definition of “in use” as set out in Brady, the relevant train was technically “in use” even though it was not moving. The Illinois Appellate Court affirmed the trial judge’s decision and affirmed that the plaintiff should receive the full $500,000 jury verdict.

Kreisman Law Offices has been handling Illinois FELA lawsuits for individuals and families for more than 35 years in and around Chicago, Cook County and its surrounding areas, including New Lennox, Mount Prospect, Park Ridge, Arlington Heights, and Calumet City.

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