please the court counsel gerry starts on behalf of the eastern illinois railroad the facts in this case where the presented is can f t l any liability be established merely by proving that an alternative of doing the work that may be automated or safer could be available now it was not available and had not been available for four years into methods of doing the work were available  farmer's field also available work pick up trucks that could have been used to transport the railroad ties to the work site rather the allegations in the case are you should have had a tie crane railroad however he was not injured in the course of the transport in the course of the transport a tide jumps out of the bucket now when he when mr abernathy loaded the bucket with these coworker  were stable neither mr abernathy nor his coworker saul any reason or any notice that there was an unsafe load or an imbalance look the tie during did not complain of any risk of injury what he complained of is that we have a type brain that you have not prepared for for years it would make my work easier but he did not know i think this is a significant distinction never complained that was that the child theory right that was our defense was certainly built upon the absence of evidence that the methods actually available were inherently unsafe and in the absence of we start with the proposition that there is no duty to provide the most automated or the safest method of doing the work rather the focus must be is that which actually was made available by the railroad inherently unsafe and such that you reasonably would anticipate harm or injury from the  there is a general duty to be safe but it has to be reasonable and i understand your point is there's not a duty to make it as sacred as humanly possible right but given that there are different levels of risk apparently associated with these different methods why is this not just a jury issue because the there must be evidence and this is you know the mcbride case that i rely on most readily anticipated who is mr fletcher mr fletcher is the president of the eastern illinois railroad and what was he talking about when he testified i didn't do my job that was and there was an antecedent to that question that if i was required to have a tight rein i then would not have done my job but there still begs the question why is he required to have the tie for him which no duty to have the safest method we have those methods available were would you agree that there is at least some inherent risk in lifting manually objects that way one hundred fifty pounds or more  with two people left in accordance with their training it is a risk that is ordinary in their in their job description and what they do that that is not sufficient you know may i ask you how many separate reversible errors do you think the judge made in this case we have three assignments and essentially are independently reversible grounds  f no there would be three and in the new trial motion there would be components to the j m l l which in the first instance says there was an absence of proof that the pickup truck transport was recently but with regard to what is necessary i would just talk about the walker case which we thank you very similar in terms where there were method of lifting was not either alleged or shown to be negligence on the part of the railroad that that was not sufficient to sustain the case merely because alternative lifting brief where when the scope of what you're doing is what's in your ordinary and regular duties and you're doing it not negligently here it wasn't the transport that injured it was the actual lift for which there is likelihood that ties would fall off that's part of the railroad was on no notice that this was anything but a proper use of the back o they had a history of use without  have the employee and the plaintiff using it who concluded the load was stable and had no reason to believe anything would occur we have the only expert testimony in the case testifying that this was a reasonable and customary method in the rail repair industry for transporting a railroad ties it it's transitioning not from a case of any notice any true indeed show of a negligent act on the part of the rebel road and pushes he does this he uses automated equipment to handle times no he said he uses a flatbed truck out when he was going to sit in the mendoza what to actually move the tires off and on the truck if they have they will use the fact our point is is that we are being held especially as the guarantor strictly liable because we have no notice nothing that would support that we anticipated no evidence that we would is not even alleged to be negligent only there is no fact dispute that the direct cause of this intrusive lifting the tie and causation a case and cause are actually defined terms as we cited a occasion for that direct cause to operate now is true that is recognized and standard negligence not an f e l a negligence proximate cause ation analysis but spread it is not antagonistic to is not a basis to impart notice on the railroad because that would be imposing a duty for the railroad to anticipate the negligence of a third party third party the plaintiff here the pla notice or reason to expect that he would operate the backhoe as he described and so from that perspective again we're being made a guarantor for something we had no notice of i think you're  arguing that duty question at at the level of specificity that feel a lot does not require or ordinary negligence law for that matter it's reasonable for see ability or risk of harm well and our theory of the plaintiff's case absent evidence that there and this is based on the i feel like cases that there was a reasonable anticipated harm that would result in injury we have no evidence that there was ever any issue  when you have no breach of duty without notice you cannot because then you have to render the torah law into a a guarantee setting where you're just the guarantor of whatever happens when they're in the course of employ or in the course of was in regard to reporting the absence of a working tie kind of ten mile and i bet i told him twenty times at least that's from the transcript page twenty document eighty nine then he goes on about how unsafe quote unquote many discussions between him and alan about whether a tie crane should be replaced before plaintiff was injured and here's the nation the full quote is i didn't do my job because i'm the one that said we're not going to repair the difference is the plaintiff in harben showed evidence of the railroads negligence pruitt's disregard of complaints made by the employees i just read a few complaints made by the employee that the management at this company admitted  irq distinction walker made was additionally in harben the players showed the availability of alternative methods and safeguards that would ensure employee safety here we have a tie crane that everyone acknowledges the railroad had just become in operable in two thousand and eight and remain in operable all the way through two thousand and twelve now i think there are a few other arguments are addressing the few larger scale railroad tracks they have to be manually lifted the public roadway is very important because one of the points counsel wants to make is she wants to limit liability to the actual act of lifting the ties and i think that's from the briefing but even if you just look at the event one of their allegations of comparative fall that they raise not just the trial during play its case in chief before they move for director burke but also in their briefing is they say well you should've called back to the railroad once to tie spill you should've called him al or you should call other employees about this house or well the reason they couldn't just wait for other employees to come in and help them clean up the and if you load all the ties now your pickup trucks over capacity but if the jury believes plaintiff was at fault for not using the pickup truck they might also noted the evidence was that hour and the manager had never told plaintiff not to use a pickup truck t look at the verdict form again but i think on that verdict form the central district they actually filled it out and had to do the math oh yeah i would have to check the short appendix to be sure but i think that's where i saw it just last night looking  why traditional formulations of proximate cause are not appropriate now feel like due to the statutory language one of the cases mcbride cites a few times is the clause between two railroads and it actually stated it was talking about traditional proximate cause principles it refers to in ordinary usage when it's disgusting how the  employee doing his job no one is stating that what plato did it in point was outside the course of his employment even after calling it compared to fall no one is saying that was somehow an intervening cause or supervening cause and more importantly law unforseen ability their view on for the ability has been rejected for decades and as a court mentions their view would be improper even in a common law case but i danger to employ safety by you not using the appointment for this job you know touching briefly i think on the new trial issues they're covered extensively in the briefing but the only yes his company's biggest client was eighty and eighty and the parent company to the railroad so he acknowledged that his company's biggest client was eighty and he acknowledged that he was where some kind of relationship between a t m and that company but he denied knowing that a t m was the parent company and then fletcher admitted that yes a d m is our parent or corporate parent the only other issue that i can think of evidence sheree was the testimony by alan his use of a pickup truck when it was over capacity and again two points i guess number one on the substance it's relevant because they brought in alan to testify about what capacities the pickup trucks were they are not contending the jury was improperly instructed in fact the jury was properly instructed of what plaintiff has to show for negligence in for causation the jury reached a verdict it was not a runaway jury by any means it was a seventy thirty in which i believe the figure was nine hundred dollars awarded to the trial after a jury verdict for the cost it had to pay to the plaintiffs expert work the trouble seeking the deposition this would be the identical