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                                      Appellate Court                            this document
                                                                                 Date: 2016.02.22 10:16:32
                                                                                 -06'00'




                  Wardwell v. Union Pacific R.R. Co., 2016 IL App (5th) 140461



Appellate Court           CHRISTOPHER WARDWELL, Plaintiff-Appellant, v. UNION
Caption                   PACIFIC RAILROAD COMPANY, Defendant-Appellee.



District & No.            Fifth District
                          Docket No. 5-14-0461



Filed                     January 13, 2016



Decision Under            Appeal from the Circuit Court of St. Clair County, No. 10-L-106; the
Review                    Hon. Vincent J. Lopinot, Judge, presiding.



Judgment                  Reversed and remanded.



Counsel on                Mark P. Dupont, of Bigfork, Montana, for appellant.
Appeal
                          Thomas E. Jones and Harlan A. Harla, both of Thompson Coburn
                          LLP, of Belleville, for appellee.



Panel                     JUSTICE GOLDENHERSH delivered the judgment of the court, with
                          opinion.
                          Justice Stewart concurred in the judgment and opinion.
                          Justice Moore dissented, with opinion.
                                             OPINION

¶1       This appeal is taken from the trial court’s denial of plaintiff Christopher Wardwell’s
     posttrial motions following a jury verdict in favor of defendant, Union Pacific Railroad
     Company. The trial court permitted defendant to present evidence that a nonrailroad third
     party was the sole cause of injuries plaintiff sustained in a motor vehicle accident while
     riding as a passenger in a vehicle owned and operated by defendant. Plaintiff was an
     employee of defendant at the time of the accident, and brought an action against defendant
     under the Federal Employers’ Liability Act (FELA) (45 U.S.C. § 51 et seq. (2006)). For the
     reasons stated below, we reverse and remand this cause for further proceedings.

¶2                                         BACKGROUND
¶3        Plaintiff was hired by defendant on September 11, 2006, and worked as a switchman,
     brakeman, and conductor on freight trains until the date of the accident in question. The
     details of the accident are as follows.
¶4        At approximately 5:16 a.m. on August 9, 2008, plaintiff suffered a severe back injury in a
     two-car collision while riding as a passenger in defendant’s van being driven by Regeania
     Goodwin (Goodwin), a professional driver hired by defendant to transport plaintiff and two
     coworkers from defendant’s railway yard to a train owned by defendant. Goodwin was
     rear-ended by a vehicle operated by Erin Behnken (Behnken). It has been stipulated that
     Goodwin was the agent of defendant, and that defendant was responsible for Goodwin’s
     conduct concerning the accident. It has also been stipulated that Behnken was intoxicated at
     the time of the accident, and had admittedly “blacked out” or had fallen asleep at the wheel
     immediately prior to the collision. As a result of the accident, plaintiff can no longer perform
     the job duties that he could prior to the collision, and is currently employed by defendant as a
     security guard at a significant wage reduction.
¶5        Plaintiff brought an action against defendant under FELA based on the negligent acts of
     defendant’s driver. 45 U.S.C. § 51 et seq. (2006). A jury trial was held from November 18
     through 23, 2013. At trial, defendant argued and presented evidence that the sole cause of the
     accident was the negligence of Behnken, who admittedly operated the vehicle that rear-ended
     defendant’s van while intoxicated. Plaintiff subsequently filed two motions in limine to
     exclude this evidence and argument, asserting FELA does not permit a sole-cause defense
     based on a nonrailroad third-party’s negligence. The trial court denied plaintiff’s motions
     in limine and permitted defendant’s sole-cause defense.
¶6        The accident itself occurred in the right-hand lane of southbound Route 3 near Columbia,
     Illinois, which is formed by the merger of the left lane from southbound I-255, the location
     where defendant’s van was traveling, and the right lane of eastbound I-255, the location
     where Behnken’s vehicle was traveling. There was a dispute at trial as to how long the van
     was in the right lane before it was rear-ended by Behnken’s vehicle.
¶7        Goodwin testified that prior to the accident while driving defendant’s van in the left-hand
     lane on Route 3, she looked for vehicles in the right-hand lane, waited for a truck to pass her
     in the right-hand lane, activated her turn signal, checked her side mirror, and confirmed there
     was no vehicle in the right lane before moving the van from the left lane into the right lane.
     While the forms Goodwin filled out at the scene of the accident indicate she was driving the


                                                -2-
       van in the right lane for over two minutes before the accident occurred, Goodwin testified at
       trial that she was driving in the right lane for only 20 seconds prior to the collision. In
       contrast, plaintiff testified the van was only in the right lane for one or two seconds before
       impact. The length of time the van was in the right lane before impact was relevant to
       defendant’s negligence concerning the accident.
¶8          Goodwin’s training as a professional driver was also discussed at trial. At the time of the
       collision, Goodwin was employed by PTI, a van company that defendant contracted with to
       transport its employees to and from its trains and rail yards. Goodwin received her
       professional training through the Smith System, which required that Goodwin check her
       mirrors every five to eight seconds and keep a 360-degree level of awareness of her vehicle.
       Goodwin was further trained through the signal mirror over shoulder and go (SMOG)
       technique for changing lanes, which required her to (1) signal first, (2) look in her mirrors,
       (3) look over her shoulder to check her blind spot, and (4) change lanes only when it was safe
       to do so. As previously stated, it was stipulated at trial that Goodwin was an agent of
       defendant and defendant was responsible for Goodwin’s conduct concerning the collision.
¶9          The jury returned a verdict in favor of defendant and against plaintiff. On December 16,
       2013, plaintiff filed motions for judgment notwithstanding the verdict and to vacate the jury
       verdict or for a new trial on all issues, and a memorandum of law in support thereof. Similar
       to his motions in limine which were denied, plaintiff asserted FELA prohibits defendant from
       presenting a sole-cause defense based on the negligence of a nonrailroad third party. The trial
       court denied plaintiff’s posttrial motions. On September 18, 2014, plaintiff timely filed a
       notice of appeal.

¶ 10                                             ANALYSIS
¶ 11        The first issue raised by plaintiff on appeal alleges the trial court abused its discretion in
       denying his motion for a new trial because defendant did not have the right to introduce
       evidence and argument that a nonrailroad third-party driver was the sole cause of the accident
       in question. For the following reasons, we agree with plaintiff and reverse and remand this
       cause for further proceedings.
¶ 12        The standard for determining whether a trial court erred in denying a motion for a new
       trial is whether the jury’s verdict was against the manifest weight of the evidence. Maple v.
       Gustafson, 151 Ill. 2d 445, 454, 603 N.E.2d 508, 512 (1992). A verdict is against the
       manifest weight of the evidence where the opposite conclusion is readily apparent or where
       the findings of the jury are unreasonable, arbitrary, and not based upon any of the evidence.
       Maple, 151 Ill. 2d at 454, 603 N.E.2d at 512-13. A trial court’s decision to grant or deny a
       motion for a new trial is generally given great deference. Reidelberger v. Highland Body
       Shop, Inc., 83 Ill. 2d 545, 548, 416 N.E.2d 268, 270 (1981). Therefore, a trial court’s ruling
       on a motion for a new trial will not be reversed except in those instances where it is
       affirmatively shown that it clearly abused its discretion. Maple, 151 Ill. 2d at 455, 603
       N.E.2d at 513.
¶ 13        In the instant case, plaintiff’s cause of action against defendant alleged negligence under
       FELA (45 U.S.C. § 51 et seq. (2006)). Under FELA, railroad companies are liable in
       damages to any employee who suffers injury due to the railroad’s negligence. As a general
       matter, FELA actions adjudicated in state courts are subject to state procedural rules, but the


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       substantive law governing them is federal. St. Louis Southwestern Ry. Co. v. Dickerson, 470
       U.S. 409, 411 (1985).
¶ 14        In a FELA action, an injured railroad employee can recover all of his damages from his
       employer if the employer’s negligence caused any part of the employee’s injury, regardless
       of whether the injury was also caused in part by the actions of a third party. Norfolk &
       Western Ry. Co. v. Ayers, 538 U.S. 135, 165-66 (2003). The statutory language supports the
       understanding that FELA does not provide for the apportionment of damages between
       railroad and nonrailroad causes:
                    “Every common carrier by railroad while engaging in commerce *** shall be
                liable in damages to any person suffering injury while he is employed by such carrier
                in such commerce *** for such injury *** resulting in whole or in part from the
                negligence of *** such carrier ***.” 45 U.S.C. § 51 (2006).
       Because FELA’s express terms allow a worker to recover his entire damages from a railroad
       whose negligence jointly caused an injury, the burden of seeking contribution from other
       potential tortfeasors is placed on the railroad. Ayers, 538 U.S. at 141.
¶ 15        Furthermore, where a jury could reasonably conclude that the defendant’s negligence
       contributed to the plaintiff’s injury, it does not matter that, from the evidence adduced at trial,
       the jury could also reasonably attribute the plaintiff’s injury to a third-party’s negligence.
       “[T]he test of a jury case is simply whether the proofs justify with reason the conclusion that
       employer negligence played any part, even the slightest, in producing the injury or death for
       which damages are sought.” Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506 (1957).
       The fact that a number of factors may have contributed to an injury is irrelevant so long as
       one cause may be attributable to the railroad’s negligence. Coffey v. Northeast Illinois
       Regional Commuter R.R. Corp. (METRA), 479 F.3d 472, 476 (7th Cir. 2007). Therefore, if
       negligence is proven and is shown to have played any part in producing the injury, the
       railroad is liable in damages even if the extent of the injury or the manner in which it
       occurred was not probable or foreseeable. CSX Transportation, Inc. v. McBride, 564 U.S.
       ___, ___, 131 S. Ct. 2630, 2641 (2011).
¶ 16        In the case at bar, plaintiff presented a significant amount of evidence of defendant’s
       negligence concerning its driver in the collision. Specifically, Goodwin admitted that she
       failed to comply with the training she underwent through the Smith System for her
       employment as a professional driver:
                    “Q. [by plaintiff’s counsel:] Look at the Smith System if you would, again exhibit
                6 and I’d like you to look at 6.13. And this is again how you were trained, correct?
                    A. Yes.
                    Q. And it says here they want you to use the SMOG technique, S-M-O-G,
                correct?
                    A. Yes sir.
                    Q. And that’s an acronym, you know what an acronym is, it’s like the short
                letters?
                    A. Yes sir.
                    Q. So the first thing is to signal and you did that, correct?
                    A. Yes.
                    Q. And the second thing here says to look at your mirrors, mirrors plural, correct?

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                    A. Yes.
                    Q. And you agree you didn’t look in your rearview mirror, correct?
                    A. Correct.
                    ***
                    Q. Okay. But in this case you agree you were taught to look over your shoulder
                and make sure to check your blind spot before you pull over, correct?
                    A. Yes sir.
                    Q. And you didn’t do that that day?
                    A. No sir, I made a judgment call at that point.”
¶ 17       From Goodwin’s admission of her noncompliance with her professional training
       immediately prior to the collision, we find plaintiff produced circumstantial evidence of
       defendant’s negligence. Specifically, Goodwin admitted that she failed to check her rearview
       mirror and failed to look over her right shoulder to check her blind spot prior to changing
       lanes just before the collision occurred.
¶ 18       In a FELA action, our determination is narrowly limited to the single inquiry of whether
       the conclusion may reasonably be drawn that the employer’s negligence played any part at all
       in the injury. Rogers, 352 U.S. at 506-07. The employee’s burden is met when proof is
       adduced, even though entirely circumstantial, from which a jury may reasonably make this
       inference. Rogers, 352 U.S. at 508. Here, we find sufficient evidence was produced from
       which a jury could have reasonably drawn the inference that defendant was negligent and a
       cause, at least in part, of plaintiff’s injuries. Therefore, plaintiff has met his burden under
       FELA.
¶ 19       It is important to reiterate that employers such as defendant, who are subject to FELA,
       have a duty to provide a reasonably safe work place, and an injured railroad employee can
       recover all of his or her damages from the employer if the employer’s negligence caused any
       part of the employee’s injury. Ayers, 538 U.S. at 141. Therefore, any evidence whose only
       relevance is to apportion culpability between the employer and other causes is improper.
       Ayers, 538 U.S. at 159-60.
¶ 20       Given our determination that the jury could have reasonably concluded that defendant
       was negligent, at least in part, regarding the collision in question, we find the trial court erred
       in permitting defendant’s sole-cause defense. A nonrailroad third party’s alleged negligence
       is inadmissible when evidence is presented, albeit entirely circumstantial, that the railroad
       contributed to the injury. Ayers, 538 U.S. at 161. Here, plaintiff has met this burden.
       Accordingly, we reverse and remand this cause for further proceedings with directions to
       prohibit defendant’s sole-cause defense under FELA.
¶ 21       Plaintiff further alleges the trial court abused its discretion in instructing the jury with
       defendant’s instruction No. 3 because a sole-cause affirmative defense based upon the
       negligent acts of a nonrailroad third party is not a correct statement of law under FELA.
       Plaintiff also contends the trial court abused its discretion in refusing to instruct the jury with
       plaintiff’s tendered instruction Nos. 8, 24, 25, and 26, which plaintiff asserts correctly state
       the law under FELA. Because we reverse and remand this cause for further proceedings for
       the foregoing reason, we need not address these issues.
¶ 22       Finally, plaintiff argues the trial court abused its discretion in permitting defendant to
       introduce certain evidence at trial, including lay witness opinions concerning Behnken’s

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       fault, evidence that plaintiff’s medical insurance paid for his treatment, and evidence
       concerning Behnken’s consumption of alcohol on the date of the accident. We again reiterate
       that because we reverse and remand this cause for further proceedings, we need not address
       these issues. However, since the issue of the admissibility of the lay witness testimony and
       opinion will likely arise on remand, we provide applicable guidance which we consider
       appropriate.
¶ 23       The admission of evidence falls within the discretion of the trial court and will not be
       disturbed on review absent an abuse of discretion. Ayala v. Murad, 367 Ill. App. 3d 591, 602,
       855 N.E.2d 261, 271-72 (2006). A lay witness may express an opinion based on personal
       observations when it is difficult or impossible to convey to the jury the totality of the
       conditions perceived, and the opinion is one that people are generally capable of and
       accustomed to making and understanding. Zoerner v. Iwan, 250 Ill. App. 3d 576, 580, 619
       N.E.2d 892, 897 (1993).
¶ 24       In the instant case, Bruno Schmidt (Schmidt) was called to testify on behalf of plaintiff.
       Schmidt indicated that he had obtained a Ph.D. in physics, had performed consulting work in
       the area of accident reconstruction over the last 20-plus years, and had been hired by plaintiff
       to perform certain work concerning the accident at issue. Specifically, Schmidt testified that
       he was asked to look at the motion of the van as it was traveling from the time plaintiff was
       picked up until the van was rear-ended. Schmidt further testified that plaintiff’s counsel had
       given him and he had reviewed reports completed by the four occupants of the van, the
       deposition transcripts of the four occupants, and the police report of the accident.
¶ 25       The testimony plaintiff claims the court erred in permitting occurred during defendant
       counsel’s cross-examination of Schmidt:
                   “Q. [Attorney for defendant:] Right. And, as a matter of fact, you, as part of the
               materials that [plaintiff’s counsel] gave you when he first hired you in this case, he
               gave you the accident reports of every one of the occupants of the van, the three
               passengers; correct?
                   A. I believe that’s right, yes.
                   Q. And every one of them said that the sole cause of this accident was−
                   [Attorney for plaintiff:] I’m going to object, [Y]our Honor. That calls for
               improper testimony, invades the province of the jury as to what caused−
                   THE COURT: Overruled. The witness can answer if he knows.
                   [Attorney for defendant:] They all indicated the cause was the drunk driver
               rear-ended the van; correct.
                   A. The collision was when the rear car rear-ended the van, yes.
                   Q. And they didn’t indicate that the driver of the van did anything wrong; right?
                   A. I don’t recall that they did say that, no.”
¶ 26       Plaintiff alleges the term “sole cause” and the phrase “the cause was the drunk driver”
       constitute opinion testimony of laypersons that the trial court improperly permitted. Plaintiff
       contends the trial court abused its discretion when it allowed this line of inquiry, as lay
       opinion testimony concerning causation is prohibited.
¶ 27       On remand, the trial court should note that lay opinion testimony is admissible even on
       the ultimate issue to be decided by the trier of fact. As Illinois Rule of Evidence 704
       indicates:

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                     “Testimony in the form of an opinion or inference otherwise admissible is not
                objectionable because it embraces an ultimate issue to be decided by the trier of fact.”
                Ill. R. Evid. 704 (eff. Jan. 1, 2011).
¶ 28        However, while lay opinion testimony is permitted as to the ultimate issue, it must also
       be of assistance to the trier of fact to be admissible. The rule excludes opinion testimony of a
       lay witness wherever inferences and conclusions can be made by the jury as well as by the
       witness. Illinois Rule of Evidence 701 states the following:
                     “If the witness is not testifying as an expert, the witness’ testimony in the form of
                opinions or inferences is limited to those opinions or inferences which are (a)
                rationally based on the perception of the witness, and (b) helpful to a clear
                understanding of the witness’ testimony or the determination of a fact in issue, and (c)
                not based on scientific, technical, or other specialized knowledge within the scope of
                Rule 702.” Ill. R. Evid. 701 (eff. Jan. 1, 2011).
¶ 29        We further note that on cross-examination, counsel may probe an expert witness’s
       qualifications, experience and sincerity, the weaknesses in the basis of his opinions, the
       sufficiency of his assumptions, and the general soundness of his opinion. Halleck v. Coastal
       Building Maintenance Co., 269 Ill. App. 3d 887, 897, 647 N.E.2d 618, 627 (1995). An expert
       may also be cross-examined on material he reviews, but from which he did not ultimately
       rely. Halleck, 269 Ill. App. 3d at 897, 647 N.E.2d at 627. A trial court’s determination
       regarding the scope of cross-examination will not be disturbed on appeal absent an abuse of
       discretion. Halleck, 269 Ill. App. 3d at 897-98, 647 N.E.2d at 627.
¶ 30        In support of his argument that the admission of lay opinion testimony concerning
       causation constitutes reversible error, plaintiff cites to Freeding-Skokie Roll-Off Service, Inc.
       v. Hamilton, 108 Ill. 2d 217, 483 N.E.2d 524 (1985). Freeding-Skokie Roll-Off Service, Inc.
       involved a truck owner and driver who brought an action against an automobile driver to
       recover damages sustained in an automobile collision. The issue presented to our supreme
       court was whether the trial court erred in admitting, over objection, the opinion testimony of
       the plaintiff and a witness that the collision could not have been avoided. Freeding-Skokie
       Roll-Off Service, Inc., 108 Ill. 2d at 219, 483 N.E.2d at 525. The supreme court held that such
       lay witness opinion testimony was superfluous, and its admission in an action arising out of
       the collision at issue was reversible error. Freeding-Skokie Roll-Off Service, Inc., 108 Ill. 2d
       at 223, 483 N.E.2d at 527.
¶ 31        We distinguish Freeding-Skokie Roll-Off Service, Inc. from the instant case. Unlike
       Freeding-Skokie Roll-Off Service, Inc., the lay opinion evidence plaintiff alleges was
       improperly permitted was deposition testimony and testimony contained within the police
       report which plaintiff’s own expert witness relied upon in forming his opinion. The
       passengers themselves did not testify at trial.
¶ 32        Since this case involves the question of who was negligent regarding the collision, the
       trial court will need to weigh whether the opinion expressed by the passengers through
       deposition testimony and accident reports was helpful to a clear understanding to the
       determination of a fact in issue. The trial court should note that this testimony was elicited
       from plaintiff’s expert witness, Schmidt, during defense counsel’s cross-examination of
       Schmidt regarding the reports and transcripts of the passengers present in the van with
       plaintiff at the time of the collision. We reiterate that the passengers themselves did not
       testify. Rather, Schmidt testified that he relied on the deposition testimony and reports of the

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       eyewitness accounts to form his opinions in this matter.


¶ 33                                        CONCLUSION
¶ 34       For the reasons stated herein, the judgment of the circuit court of St. Clair County is
       reversed and the cause is remanded for further proceedings.

¶ 35      Reversed and remanded.

¶ 36        JUSTICE MOORE, dissenting.
¶ 37        I respectfully dissent, and would affirm the jury’s verdict. My review of the record and
       applicable case law reveals that the jury was properly instructed in accordance with the
       standards for liability set forth in the Federal Employers’ Liability Act (FELA) (45 U.S.C.
       § 51 et seq. (2006)) and that the evidence was sufficient to sustain the jury’s verdict. FELA
       provides that a common carrier is liable in damages to any person suffering injury while
       employed by such carrier if such injury results in whole or in part from the negligence of
       such carrier. 45 U.S.C. § 51 (2006). Accordingly, in Norfolk & Western Ry. Co. v. Ayers, 538
       U.S. 135, 160 (2003), the Supreme Court held that if a plaintiff’s injury was caused, at least
       in part, by the defendant railroad, then the railroad is responsible for 100% of the plaintiff’s
       damages, regardless of whether third parties are partially at fault. In other words, FELA does
       not permit apportionment of damages between railroad and nonrailroad causes. Id. There is a
       stark difference, however, between apportioning fault between joint tortfeasors and finding
       no liability on the part of a defendant because another actor was the sole cause of the injury. I
       find nothing in the law that stands for the proposition set forth by the majority, that the mere
       production of testimony that could be construed by a jury as evidence of the negligence of
       the railroad precludes the railroad from putting forth additional evidence in the case, and a
       jury from considering, that a third party was the sole cause of the injury. Such a holding
       compromises the role of the jury in FELA cases.
¶ 38        The majority cites Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 508 (1957), for the
       proposition that if this court, on review, finds that the employee has produced evidence from
       which a jury could reasonably infer that the defendant was negligent and was a cause, at least
       in part, of the plaintiff’s injuries, it is reversible error for the circuit court to allow the
       defendant to introduce evidence that another party was the sole cause of the injury. Supra
       ¶ 18. I do not read Rogers to stand for this proposition. To the contrary, the standard
       discussed in Rogers was employed to determine whether a jury question was presented. The
       Rogers standard was not used in the manner employed by the majority, to take the causation
       question out of the province of the jury entirely. See Inman v. Baltimore & Ohio R.R. Co.,
       361 U.S. 138, 140 (1959) (quoting Rogers, 352 U.S. at 506-07 and determining that no jury
       question was presented as to the railroad’s negligence where the plaintiff was hit by a drunk
       driver while working at a crossing and there was no evidence of prior accidents or conditions
       at the crossing that would have contributed to cause the accident).
¶ 39        In Rogers, the Supreme Court held that the lower court should not have disturbed a jury
       verdict in favor of the injured railroad worker. 352 U.S. at 505. According to the Rogers
       Court, when there is evidence in the record that supports the verdict, the decision is
       exclusively for the jury to make. Id. The Rogers Court did not prohibit the jury from

                                                   -8-
       considering evidence that the petitioner was the sole cause of the accident. In fact, the Court
       found that the jury was properly instructed to return a verdict in favor of the defendant
       railroad if it found that the negligence of the petitioner was the sole cause of the accident. Id.
       The jury in Rogers found that the petitioner was not the sole cause of the accident, and the
       Supreme Court found that it was the jury’s province to so decide. Id. The Rogers Court
       stringently emphasized that the decision on causation is for the jury to make. Id.
¶ 40        In this case, as the majority discusses, there was evidence that the railroad’s van driver
       failed to check her mirrors with the frequency that she was taught, and so a jury question was
       presented under the standard enunciated in Rogers. However, there was conflicting evidence
       before the jury as to how long the van had been in its lane before it was struck from behind.
       Some evidence was presented to the jury that the van had changed lanes as long as 20
       seconds prior to the crash. If the jury concluded, as I believe it did, that this was the case,
       then any purported negligence on the part of the van driver regarding the manner in which
       she changed lanes could not have been a cause, even in part, of the accident. Accordingly,
       unlike Rogers, after considering all of the evidence in this case, the jury found that the drunk
       driver who rear-ended the van was the sole cause of the plaintiff’s injury, and, as such, the
       injury did not result, in whole or in part, from the negligence of the railroad. This is the
       standard set forth for liability under FELA, and to hold that evidence that a third party was
       the sole cause of an injury is inadmissible would eviscerate the standard in FELA that the
       railroad be a cause, at least in part, of the accident.
¶ 41        In fact, I believe that the Supreme Court’s decision in Inman makes it clear that evidence
       that a third party was the sole cause of the accident must be considered in determining
       whether the plaintiff can establish a cause of action under FELA. 361 U.S. 138. In Inman, the
       jury had before it evidence that a drunk driver hit the plaintiff as he was working at a railroad
       crossing. Id. Nevertheless, the jury found that the railroad was a cause, in part, of the
       accident because it did not afford the plaintiff enough protection. Id. at 139. The Supreme
       Court affirmed the lower court’s reversal of the jury verdict based on a lack of evidence that
       anything the railroad did contributed to cause the accident. Id. at 140. One simply cannot
       make a factual determination as to whether the railroad was a cause, at least in part, of the
       accident if one does not consider all of the circumstances surrounding the occurrence,
       including whether another party was the sole cause. I believe Inman demonstrates this point.
¶ 42        Once the jury resolved the contested issue of how long the van was in its lane before it
       was rear-ended, I find plenty of evidence in the record to support the jury’s conclusion that
       the van driver did not cause the injury, even in part. The plaintiff himself reported to the
       police and to the defendant that the cause of the accident was that a drunk driver rear-ended
       the vehicle in which he was riding. The plaintiff testified that there was nothing defective or
       wrong with the van itself that could have contributed to his injury. He testified that the driver
       for the railroad was alert and attentive, she obeyed the speed limit, and he never saw the
       driver violating any rules of the road.
¶ 43        Again, there was conflicting evidence as to how long after the van changed lanes that it
       was hit from behind. These are the types of conflicts that the jury was empanelled to resolve
       (Rogers, 352 U.S. at 509), and the jury in this case resolved them in favor of the railroad. I
       find no basis to disturb the jury’s determination that any alleged negligence on the part of an
       agent of the railroad was not a cause of the plaintiff’s injury. In addition, I find that the


                                                   -9-
evidentiary errors set forth by the plaintiff either were not an abuse of discretion or did not
have a prejudicial effect on the verdict. For these reasons, I would affirm.




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