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FIFTH DIVISION

SEPTEMBER 14, 2001

No. 1-99-2285

Plaintiff Rachel Barton filed suit against defendants Chicago & North Western Transportation Company, n/k/a the Union Pacific Railroad Company (CNW)⁽¹⁾, and the Northeast Illinois Regional Commuter Railroad Corporation (NIRCRC), alleging that she was dragged by a train because defendants did not have a proper procedure to determine whether a passenger was caught in the train's doors before leaving a station.⁽²⁾ Following a jury trial in the circuit court of Cook County, defendants were found liable to plaintiff on the claims brought against each of them. The trial court denied defendants' post-trial motions. Defendants timely filed a Notice of Appeal to this court.

The record on appeal discloses the following facts. NIRCRC is a corporation maintained, supervised and directed by the Commuter Rail Board (CRB), the governing body of the Commuter Rail Division (CRD) of the Regional Transportation Agency (RTA) under the RTA Act. See 70 ILCS 3615/2.20(a)(xii), 3B.01, 3B.02 (West 2000). Defendants' brief states that "[t]he CRD/NIRCRC are known to the public through the service mark 'Metra.'"⁽³⁾

The CRB may provide public transportation by operating facilities or through purchase of service agreements (PSAs) with other transportation agencies. See 70 ILCS 3615/2.01, 2.03 (West 2000). The CRD and CNW entered into a PSA. Article II, Section 2.04 of the PSA states in part that the CRD may, at any time, direct changes in Contract Standards. Article I of the PSA defines "Standards" as "the standards specified in Exhibit 2-C." Exhibit 2-C states in part as follows:

"1. SAFETY

The Contract Services shall be operated or provided by [CNW] in accordance with the applicable standards of safety established by any agency of the Federal Government or the State of Illinois, and any other standards established by the [RTA] pursuant to Section 2.04 of this Agreement. [CNW] shall maintain its existing practices and procedures *** for the safety of its passengers, employees and property used in providing the Contract Services ***."

Article IV, section 4.01 of the PSA states in part that CNW is an independent contractor for the CRD, and shall have managerial control with respect to the Contract Services. The PSA was in effect through December 31, 1998.

Plaintiff Rachel Barton, born in October 1974, began playing the violin when she was three and a half years old. By the time she was 11 years old, Barton was practicing eight hours daily and had joined the Civic Orchestra in Chicago, which trained people to be concert masters in professional orchestras. When Barton was a teenager, she would go dancing on Friday and Saturday nights; she began dating at age 14. Barton engaged in local, national and international violin competitions. Barton paid her living and musical expenses and would travel alone. When Barton's instruction ended at age 17, she spent more time with friends and family. She hoped eventually to get married and have children.

At age 18, Barton had left the Civic Orchestra and was playing with the Grant Park Symphony and the Lyric Opera Orchestra, as well as substituting for ill members of the Chicago Symphony Orchestra. Barton began giving violin lessons at the Music Center of the North Shore in Winnetka (MCNS). Barton's compact disc of Spanish classical music was released at the end of 1994.

On January 16, 1995, at 10:30 a.m., Barton boarded the last car of CNW northbound train No. 317 at the Ravenswood stop in Chicago. She was going to teach at MCNS. Barton was wearing jeans, a T-shirt, possibly a flannel shirt, a bulky sweater with shoulder pads, a puffy down coat with fashion shoulder pads, gym shoes, earmuffs and thin leather gloves.

Barton was carrying a book bag, her purse and a food bag. Barton also was carrying a violin in a "cushy case" that insulated it from the cold. The violin was loaned to Barton by her patron and insured in the amount of $500,000.⁽⁴⁾ Barton testified that she was carrying these items on her shoulder. According to Barton, these items would not slip down her shoulder, due to the puffiness of her coat. Barton stated that she routinely carried her items in the following order: purse, violin, book bag, food bag.

During the trip, Barton removed her gloves and worked on student reports. Barton testified that she noticed that the Winnetka stop was coming up, based on her knowledge of the prior stops. Barton stated that the train was still moving when she loaded up her belongings, but had stopped by the time she reached the vestibule of the car. Dr. Caroline Clements, who was riding in the same car, heard Barton ask whether the stop was Winnetka. Dr. Clements thought that Barton would not be able to exit the train in time, but stated that the train had not stopped when she entered the vestibule.

Barton testified that her purse, violin case, briefcase and food bag were all on her left shoulder. As she tried to descend the stairs, the violin case became caught on one or two poles in the vestibule. According to Barton, while she tried to keep her belongings at her side, the violin case had "jostled sort of in back of" her. Barton stated that she took a step back, reorganized her belongings, descended the stairs and stepped off the train.

As Barton stepped onto the platform, she could hear "ambient train noise." Barton testified that she did not see or hear the train doors close, but felt and heard a bump. Barton attempted to take another step, but was unable to complete it. Barton thought that her violin case had become caught again. Barton testified that it was as if her left shoulder was pinned to the train. Barton could not turn to the right, so she began to turn to the left. Barton stated that she was bowed backwards because her feet were on the edge of the platform. As she turned her head, Barton could not see her violin case and deduced that it must have been inside the train.

Barton testified that based on her experience riding on CTA trains, she tried to spring open the train doors. Barton stated that it was difficult to get her right hand into the rubber where the doors met, given her body position. Barton could not see a door handle. Barton got a palm on the right door, but her hand slid down the door. Meanwhile, Barton was saying, "Hey, wait. Hey, open up the doors," thinking someone would hear her. Theresa Croghan, who was jogging on the opposite side of the train at the time, heard a very annoyed voice say, "Wait. Wait. Wait a minute. Wait a minute." Barton stated she had no sense of danger at this time, believing that a conductor would put his head out, see her and open the doors. Ten seconds elapsed before the train began to move.

Barton testified that she could not have removed the strap from her shoulder with a flick of the wrist. Barton stated that she would have had several factors working against her, including: her gloved hand, her awkward angle, the weight of her belongings hanging from her left shoulder; and the puffiness of her coat.

Barton testified that the train suddenly began to move northward while she was facing southward. Barton testified that she immediately stumbled and fell as the train pulled and she was pulled to the ground. Croghan testified that as the train started to move, she heard Barton saying, "No. Stop. No. Stop. No," in a very intense voice. Croghan testified that she knew this was not, as she had thought, someone who had missed a train, but that Barton was attached to the train or that there was a violent crime occurring on the platform.

As the jogging path was roughly three feet lower than the train tracks, Croghan began to look under the wheels of the train. Croghan kept hearing Barton say, "Oh, God." Croghan described it as the most bloodcurdling thing she had ever heard. Croghan testified that she then saw a brown coat in a horizontal position between wheels, which then flashed underneath and disappeared. Croghan began running and screaming to nearby people, "Stop the train. She is being dragged. Call 9-1-1."

Barton testified that she was dragged in a half-sitting position, bumping along gravelly ground next to the wheels. Barton screamed at the top of her lungs. Barton thought she was probably going to die and had to choose between continuing to be dragged, or trying to release herself from her straps. Barton stated that she thought either choice was likely to kill her; if she freed herself by pushing the bags off, she could flip herself under the wheels of the train.

Barton testified that she decided to try to free herself. According to Barton, this was difficult, due to her gloved hand and the force pulling on her and her belongings. Barton testified that the violin strap was the third down, so she got her hand under the straps as a bunch, gave a push to get them over the lump of her coat, and flipped away from the train.

Barton found herself in the gravelly area between the train tracks and the platform. Barton continued screaming because she wanted someone to hear her. Barton testified that she did not know so much pain could exist. Barton stated that all she could see "was like blood and [her] left leg was gone." Checking herself, Barton concluded that her internal organs and upper extremities were intact, at which point she thought she might live. Barton felt cold. Barton wanted to lie down and close her eyes, but thought that if she did, she would never awake. Barton decided she had to try to distract herself from thinking about her legs. At this point, people were coming toward her, one of whom was carrying something.

Brian McCarthy, another passenger on train No. 317, testified that he was walking to the vestibule of the train to exit at the next stop when he heard loud, bloodcurdling screams. McCarthy entered the vestibule from the south; a lady entering from the north said something about a young lady and a violin. McCarthy saw a violin at an angle, near the bottom of the steps.

McCarthy pushed a signal button in the vestibule until the train began to slow down. When the train stopped, McCarthy used a pen to trigger the train doors to open, as he had seen conductors do. The violin tumbled out of the car onto the railroad ties. McCarthy looked behind the train, where he saw Barton in the gravelly area between the tracks and the platform.

McCarthy left the train, carrying the violin as he went toward Barton. McCarthy was the first person to reach Barton. McCarthy put the violin on the platform, approximately six to eight feet away. McCarthy could see that one of Barton's legs had been amputated, that the other leg was mutilated, and that blood was spurting out with her every heartbeat. McCarthy removed his belt and began to apply it as a tourniquet on her left leg.

McCarthy testified that Jim Tuck, one of his friends and neighbors, arrived shortly thereafter. Tuck's belt was applied as a tourniquet to Barton's other leg. According to McCarthy, Barton was alert and calm. McCarthy testified that Barton asked him something about the violin; McCarthy told her the violin was "right here." McCarthy also obtained Barton's name and her mother's telephone number. McCarthy and Tuck held onto the tourniquets until paramedics relieved them.

Barton testified that she kept talking while McCarthy was working, telling him her name, trying to remember her telephone number, and asking him to call her mother. Barton asked McCarthy what he was carrying, because she thought it might have been her violin. Barton stated that she kept repeating these sorts of statements, even after she was put into an ambulance, also asking about her purse and asking to have someone call her workplace, because she thought that if she stopped, she would have been "freaking out again." Barton recalled that her leg had been put next to her on the stretcher, like a jigsaw puzzle, or a broken Barbie doll.

Dr. Glen Reinhart, a board-certified orthopedic surgeon, testified that he was called to Evanston Hospital to treat Barton, who was already under anesthesia when he arrived. The lower part of Barton's left leg was attached only by a bridge of skin behind the knee. The front of Barton's right leg was missing most of the skin and soft tissue from mid-thigh to mid-leg. There was a large gap in the bone just below the right knee. The skin over the front half of Barton's right foot was torn away, exposing the bones over her toes.

Dr. Reinhart spent approximately eight hours operating on Barton that day. Barton's left leg below the knee was removed. Some of the removed tissue and bone was placed in the tissue bank for later reconstructive surgery. The toes on Barton's right foot had to be removed. Dr. Reinhart was deeply concerned as to whether Barton's right leg could be saved, in part because he knew that Barton ultimately was going to have an amputation of the left leg above the knee, which would require a bigger prosthesis that would require more energy to use. There was no muscle remaining around Barton's right knee, the lower part of which was smashed into small pieces.

According to Dr. Reinhart, the surgeons could only close the wound on Barton's right thigh, as the skin on her shin was missing. Dr. Reinhart stated that open fractures such as this present a risk of infection. Dr. Reinhardt knew that he was going to have to remove unhealthy or contaminated skin every 24 to 48 hours for the next 10 days.

On January 23, 1995, Barton's left leg was amputated above the knee. Dr. Reinhart testified that this surgery left enough skin to cover the bone. During this surgery, doctors also filled the gap below Barton's right knee with beads made from bone cement containing antibiotic powder. Later in January, Dr. Gerald Harris removed a strip of muscle from the front of Barton's abdomen, transplanted it to her leg, and transplanted skin grafts from Barton's thigh to cover the muscle.

On March 14, 1995, Dr. Reinhart and his colleagues began to try to rebuild the bone in Barton's right leg, using the bone graft harvested during the initial surgery. In May 1995, Barton's leg was placed in an external device, similar to a cage, to support walking; Barton wore this device for 1