Parsons v. Norfolk Southern Railway Company
88 N.E.3d 45
Ill. App. Ct.2017Background
- Parsons, a Norfolk Southern conductor, had his left foot crushed during a 2011 shove move in the 51st/55th Street railyard when a car on adjacent Track 25 was left south of the clearance point and he rode the lead car on Track 24; clearance there measured as little as 10 ft 6 in after 2010 work narrowing track centers.
- Parsons sued under the Federal Employers’ Liability Act (FELA), alleging Norfolk Southern’s negligence (including violation of Illinois Commerce Commission track-center regulation after alleged reconstruction) caused his catastrophic foot injury and chronic complications.
- Key disputed facts: whether it was customary and permitted to leave cars between switch and clearance points and to ride cars there; whether the 2010 work constituted "reconstruction" triggering 92 Ill. Adm. Code §1500.140 (13.5 ft minimum track centers); and whether the engineer violated the federal "radio rule."
- The jury found for Parsons, awarded $22,474,102 (later reduced by $1,000,000 remittitur), found ICC track-center regulations applicable and violated, found the radio-rule violated but not a cause of injury, and found Parsons 0% negligent.
- Norfolk Southern appealed, raising contributory negligence, improper jury instructions (assumption-of-risk and ICC regulation), prejudicial counsel remarks, improper damages instruction (disability separate from pain and suffering), and excessiveness of the award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether jury erred in finding no contributory negligence | Parsons: his conduct conformed to custom/practice (temporary fouling and riding between switch and clearance); company rules ambiguous | Norfolk Southern: Parsons violated company rules by leaving cars "in the foul" and riding in the body of the yard, so contributory negligence should reduce/defeat recovery | Affirmed: conflicting evidence made contributory negligence a jury question; not against manifest weight to find Parsons not negligent |
| Whether assumption-of-risk instruction (instruction 27) was improper/prejudicial | Parsons: instruction correctly stated law that assumption of risk is not a defense under FELA | Norfolk Southern: instruction was confusing and undermined consideration of contributory negligence | Affirmed: even if improper, no prejudice shown—the charge set as a whole, counsel argument, and verdict form preserved jury’s ability to assess contributory negligence |
| Whether ICC track-center instruction (instruction 19) and special interrogatory were improper | Parsons: substantial evidence (expert and fact witnesses) supported application of §1500.140 to the injury site after 2010 work | Norfolk Southern: regulation applies only to parallel/tangent tracks and not to the area between switches and clearance points; instruction misled jury | Affirmed: applicability was a factual dispute supported by plaintiff’s evidence; instruction permissible; a narrower challenge to wording was forfeited |
| Whether counsel’s remarks prejudiced the trial | Parsons: closing remarks drew reasonable inferences and emphasized safety/regulatory compliance; not unduly inflammatory | Norfolk Southern: arguments urged jury to "send a message," accused railroad of using "false evidence," invoked public danger and implied greed—requiring new trial | Affirmed: remarks did not produce substantial prejudice or deny fair trial; many objections waived and comments were not shown to alter outcome |
| Whether jury could award disability separately from pain and suffering | Parsons: disability is a distinct, non-economic damage item and the jury may award it separately | Norfolk Southern: disability is subsumed within pain and suffering under FELA; separate line was improper | Affirmed: this court follows Dixon holding disability is separate from pain and suffering; instruction/verdict form not erroneous |
| Whether $19 million for pain, suffering and disability was excessive | Parsons: severe, chronic, recurring complications, many surgeries, permanent disability and lifelong risk of amputation justify award | Norfolk Southern: plaintiff recovered, drives, lives alone, works as dispatcher; award shocks the conscience | Affirmed: award within reasonable range given unrebutted evidence of severity, permanence, and future deterioration; not excessive |
Key Cases Cited
- Finley v. New York Central R.R. Co., 19 Ill. 2d 428 (FELA standard: any evidence of carrier negligence contributing to injury sustains verdict)
- J.L. Simmons Co. v. Firestone Tire & Rubber Co., 108 Ill. 2d 106 (no disturbance of judgment where error did not affect outcome)
- Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260 (assumption-of-risk instruction in FELA; no reversible error absent prejudice)
- Leonardi v. Loyola University, 168 Ill. 2d 83 (manifest-weight standard; verdict against weight only when opposite conclusion is apparent)
- Dixon v. Union Pacific R.R. Co., 383 Ill. App. 3d 453 (disability is separate and distinct from pain and suffering in FELA damages)
- Hamrock v. Consolidated Rail Corp., 151 Ill. App. 3d 55 (custom can nullify or limit force of safety rules in assessing negligence)
- Rodriguez v. Northeast Ill. Regional Commuter R.R. Corp., 2012 IL App (1st) 102953 (standard for new trial where verdict is against manifest weight; damages instruction precedent referenced)