Feigl v. TERMINAL RR ASS'N OF ST. LOUIS

Association Railroad Feigl, v. Terminal Plaintiff-Appellant, James Louis, St. Defendant-Appellee. 71-241;

(No. 1, 1975. Fifth July District dissenting. MORAN, J., G. Chapman, W. City (Charles & of Granite Chapman, Talbert

Chapman, for appellant. counsel), of coun- Roessler, M. Roberts, Lee,& of Belleville (Richard Gundlach sel), for appellee. court:

Mr. of the KARNS delivered the opinion JUSTICE Liability Employers’ Plaintiff action under the Federal brought for per- Act damages and the Federal Act to recover Safety Appliance by sonal either injuries alleged to have been caused defendant defendant a violation returned Act The (45 51-59.) U.S.C. §§1-16, a motion for defendant. Thereafter the filed verdict judgment trial. The verdict or for a new notwithstanding denied plaintiff’s motion. Plaintiff appeals.

The pertinent facts to the occurrence case can out of which this arose be summarized as employee follows: was an plaintiff, FeigI, James defendant, Louis, Terminal and on Railroad Association of St. 15, 1968, December occurrence, date of the switch- working man. His crew had sent to St. return a defendant’s Louis yard freight train from that At the yard defendant’s East St. Louis yard. Huffman, créw, St. Louis yard plaintiff and another the member of James were directed to connect all of the the of system air hoses for braking the train. did this and then East They entered the for the run to caboose aware, St. Louis. as Insofar the there plaintiff and Huffman were Mr. leaks in no the air On the en- system. the other end of the train Ladd, gineer, Virgil detected a the leak in air but did not slight system train; feel would be a in problem the the the proper so functioning to St. trip East Louis was begun.

As the train proceeded to East Louis, it over necessary go St. a hill or viaduct. The the single engine was unable to train pull up so another grade, engine was with its dispatched. The second engine, crew, came to the where point the train onto had and stopped coupled Mr. Ladd’s engine. engineer of the Curtis engine was assisting White.

With the two engines the train of the pulling, When proceeded. part train hill, had been pulled over the crest of the ran engine Mr. Ladd’s out of fuel. This necessitated the air for the transferring control of to Mr. braking White’s system engine. Mr. Ladd had not Mr. informed White of leak in the air slight system. to Mr. White’s According he either testimony, did detect leak in the any air did not system or leakage detect an amount uncommon for a freight train.

As the train proceeded down the hill and Mr. began pick up speed, train. As momentum of White the train brakes to check the applied In the caboose the train jolted jerked. brakes were applied, a when sitting position who was from plaintiff, process arising occurred, the jolt was thrown to the floor. further the East Louis yard the train reached St. without

Eventually At ah' system night. incident. no tests were run on the Apparently Huffman, Mr. trial, however, there was Mr. Feigl, from Mr. testimony White, There jolt. and Mr. as to what have caused might Ladd G, witnesses, Dr. Deyton, also three Dr. H. R. testimony by ejqpert J. as HiU, Dr. their Schoedinger, conflicting opinions L. who gave J. nature and extent of the plaintiffs injuries. seven errors which contends that trial court committed dire, evidence, relate its voir its admissibility conduct of on rulings its statement rulings arguments on instructions and its rulings counsel. is that the trial conducting first contention court

AppeHant’s cause, the voir dire examination in that it certain veniremen for excused defendant, without for cause any challenge having raised it failed to excuse other veniremen with result had to use his to remove No challenges them. peremptory made; therefore, and, the voir record of dire examination was no ver- batim voir dire examination is before this court. The transcript has included his an affidavit his appellant attorney abstract which was filed with motion and lists of the post-trial specific parts which voir dire Plaintiff does not contend that ob- allegedly improper. was made to the voir dire at the time jection conduct of of trial. we voir While dire examination and recognize importance examination necessity conducting order to obtain without record of the voir dire impartial jury, examination before cannot us we say acted improperly conducting Rule examination. Court Supreme 323(c) (Ill. Rev. Stat. ch. sets forth a method for (a), par. 323(c)) providing court reviewing when no with record verbatim has been transcript made. The plaintiff rule could have this employed provided court with a record is, consider this As it with contention. we have no record and trial cannot court erred the voir say conducting dire examination. 342, Richard v. 123 259 Dauby, Ill.App.2d N.E.2d 376 (1970); Augustine Stotts, 428, 40 189 N.E.2d v. 757 Ill.App.2d (1963). next contends that the

Appellant evi- admitting dence reputation habits the engineer, Curtis White. Over Ladd was Virgil appellant’s objection, permitted testify he had

59 en- of his always known Curtis in his operation White to be competent testify gine. Also over was allowed appellant’s objection, Curtis White as to his own that he never as an had had competency engineer and complaints about he way engine. handled Co., 248 Ill. cites v. & North Western

Appellant Lowry Ry Chicago 306 App. reputation for the habits or (1928), evidence of principle are question. inadmissible where there are to the event eyewitnesses 7, 196 N.E.2d Zachariah, also cites v. Stegmann Ill.App.2d 132, Ill. .2d (1964), Hickey App Transit Chicago Authority, 201 N.E.2d 742 evi for the is to introduce it error principle dence of when is Finally, appellant not issue. reputation reputation cites 534, Holtzman v. Holtzman Hoy, 118 Ill. 8 N.E. 832 In (1886). was held that even is in issue a mal though put skill physician’s practice suit, his issue, is reputation and therefore reputation evidence is not admissible.

While we do not dispute soundness of these where principles ap- plicable, we feel that a different here. evidentiary problem presented In his complaint plaintiff alleged defendant, Railroad Terminal Association Louis, of St. negligent permitting engineer an operate engine when it knew or should have known that the engineer was unfit and incapable by temperament experience to operate engine competently. at the time engineer of the occurrence out of which this action arose was Thus, Curtis White. the issue was whether the defendant was negligent Curtis employing White.

When the issue is employing allegedly incompetent or unskillful employee, character employee competency and skill is put into issue. The character can be in proved by specific cidents or by reputation, reputation estimate being community character. 1 Wigmore, Evidence 208 3d( 1940); ed. Cleary, E. §§ J. Handbook of Illinois 12.3, Evidence 12.4 (2d 1963). ed. §§

In Western Stone Whalen, Co. v. 151 Ill. 38 N.E. 241 (1894), it was held that where the basis of plaintiff’s action was the employment of an incompetent fellow servant defendant, by evidence of the general of the reputation servant could be admitted on the question the ser vant’s competency. the case of Illinois Central R.R. Co. v. Morrissey, 45 Ill.App. 127 (1892), involving situation not unlike the one out of arose, the instant case a railroad employee as a injured result operation engine engineer. On the question de of care gree exercised railroad in entrusting with the engineer engine, sought railroad show the reputation of the engineer for operating engine. The court stated:

60 time and at the and

“General for care reputation competency information as imply of of such character to place employment, the alleged to the is to tending disprove admissible as employer, in Ill.App. 135.) him.” negligence employing (45 Mr. Ladd by it not into the statements Thus was error to allow evidence an Mr. as the latter’s as engineer. White to competency and received himby Mr. no had been White’s that testimony complaints as that an be characterized engine he was to incompetent operate may and We his character for skill. competency circumstantial evidence of undoubtedly and feel that such evidence of minimum value probative is such; however, it would tend have been as would received be relevant bear on his character as a It would engineer. competent in a employing competent the railroad’s question reasonably as it what was known or bear on information engineer would skill and competency. should have been known White’s concerning Rub, 125, 75 Staunton Co. v. 218 N.E. We do not believe that Coal Ill. otherwise, as there question 770 holds the court stated as was not in issue. Such defendant’s skill an engineer put employee’s is, course, prove in it has value to or probative evidence relevant its in issue. have been reluctant to allow question Courts disprove use, however, of issues relating out considerations to confusion of policy raise the issue of an em unfair Where the surprise. and pleadings in or unskillful*employee, how ployer’s negligence hiring incompetent ele ever, the is issue employee directly put character of ment is lessened. surprise as or lack of

Here evidence was admissible on notice bearing or notice to of information White’s skill lack of regarding employer White’s evidence not introduced as directly skill. The was bearing thus, in a sense character as a or unskillful engineer skillful so as the defendant was akin to evidence far concerned. reputation 2 5 Evidence ed. Evidence (3d 1940); Wigmore, Wigmore, § J. J. ed. rev. (Chadbourn 1974) (disapproving Hoftzman). § next in excluding

Plaintiff contends a dia- of herniated disc which to have grammaticrepresentation sought use his The defen- Schoedinger during testimony. objection Dr. dant was that was and not related diagram prejudicial plain- in the to the nothing preserved relating tiff’s There record injury. X-rays is it Dr. did refer to Schoedinger nor before us. diagram the nature of plaintiff’s plaintiff’s injury indicated spine explain are this We sure whether adequate purpose. plain- is that not received diagram evidence, tiff’s complaint or forensic diagram was not allowed to used that Dr. Schoedinger his explanation testimony. aid repre as it evidence not admissible clearly diagram case disc, issues herniated one of contested

sented severely no disc, there of a herniated existence or nonexistence being condition. plaintiff’s represented that the diagram way suggestion as an aid employed to be hand, diagram On the other if the then it is the sound within Schoedinger testimony, Dr. explaining the use whether of such diagrams discretion of the trial court to allow them assist witnesses to their clarify testimony or models by expert think the better rule testimony. their favors presentation of We in use of demonstrative devices by expert explanation liberal witnesses however, trial discretion in this testimony; regard of the court has broad in this and cannot that refusal to allow the use of if say diagram, we fact this the was an abuse discretion of purpose, considering nature extent a matter injuries the and plaintiff’s sharp disagree ment the medical witnesses. among next

The error the is the admission of evidence of alleged plaintiff the of the lawsuit witness Huffman pending against defendant. James contends that into the plaintiff allowing inquiry personal injury a claim witness have the may pending against defendant is so highly as to the bounds prejudicial go beyond cross examination. For proper Williams, this Meyer contention cites v. plaintiff 513, 15 146 Ill.App.2d 712 People 138, N.E.2d (1957); Wesley, 18 Ill.2d 163 500 N.E.2d and Schmitt v. Transit (1959); Chicago 67, 34 Authority, 179 Ill.App.2d 838 of these N.E.2d None cases the (1962). same presents situation as cases, the case. instant In these the court refused to allow questioning a of the witness concerning lawsuit the against pending defendant be in cause witness each case did not a have in direct interest any pend suit. ing of the most important

One functions of cross-examination to interest, motives, bias show of a witness. A witness has who defendant, a lawsuit pending against arose out same of the subject occurrence which is the matter of the he is proceeding which witness, would be interested certainly outcome proceeding. the instant question In case the to objected involved only pend feel, therefore, claim of the himself. We ing witness that the questioning to the interest or bias witness, show proper Huffman. James next that the complains Plaintiff trial court to refusing give Pattern Instruction No. 5.01 Illinois relating possible inference the failure might be drawn from of to call party witnesses under 62 In control, support members of the train.

Ms in tMs instance other crew Transfer, of its Santiemmo v. Inc. Ill. Days cites argument, plaintiff 487, 133 Bassi v. App.2d Morgan, Ill.App.2d N.E.2d 539 These cases (1965). only support propriety N.E.2d 341 has it has been held instruction. No case where giving found to be reversible error to fail to tMs instruction. Hildebrand v. give (See Co., & Baltimore Ohio 190 N.E.2d 630 (1963).) R.R. 41 Ill.App.2d make Before tMs instruction is the court must de preliminary proper, termination that a all produce would likelihood witnesses party under the unless their quesion facts circumstances of case Here instruction was directed to testimony would unfavorable. of other members of the train crew not the caboose present calling or witnesses or not have been able to furnish engine. may may Such to the It is under question. relevant occurrence difficult to testimony how these would have information equal witnesses superior stand that of the called. witnesses who were WMle out that plaintiff points defendant, record that one employees yet discloses Ladd, witnesses one plaintiff’s Virgil engineers employed defendant. The also shows record WMte subpoenaed and Williamson Court Rule 237 pursuant Supreme Stat., Rev. ch. (Ill. 110A, It that the witnesses in par. 237). appear question were that their available to readily failure to testify was event, because of their unavailability. we cannot say its discretion abused under facts of case in refusing tMs the tendered instruction. give contends that the trial Plaintiff court erred give refusing Illinois 11.01, Pattern Instruction defining contributory negligence, while giving 10.03 wMch instructed that plaintiff had a jury to be free duty from 11.01, When contributory negligence. plaintiff tendered the defen- dant an had instruction on that stating issue it would objected, offer. The trial court sustained defendant’s objection. No other de- instruction was ever fining contributory negligence tendered by defendant. cites the comments Illinois Supreme Court Committee on Pattern Instructions Illinois Instructions Jury 10.03 11.01, state that 11.01 should be used whenever wMch contributory negligence is a issue and it be with jury should 10.03. used of the difficulties with plaintiffs

One contention is that he neglected after it that apparent to resubmit was 11.01 defendant neglected to the subject offer an instruction on of contributory negligence. We do not sit think that the can at the instruction conference as he did advantage from an here and later obvious gain that he oversight

63 or neglect fault case, Under the could have remedied. facts was the defendant. to that of equal con is that since on this point thrust of contention

The appellee’s under recovery bar to a complete not be tributory negligence would relevant, not even Act and would the Federal Employer’s liability Act, Safety Appliance under the Federal let alone a defense partial not prejudiced verdict in indicates that plaintiff favor of defendant since 11.01 Instruction the court’s refusal to Illinois Pattern give noof finding on a the defendant was grounded verdict favor of jury Feist, 221 N.E.2d cites McManus v. 76 liability. Ill.App.2d Appellee that out also points of this Appellee contention. support jury a series and since the instructions as should be considered mitigate at most went only was instructed that contributory negligence or diminish was committed. no reversible error damages, failure to give contention that the appellee’s

We with agree an action instruction could not have plaintiff. tendered prejudiced Act, contributory negligence based on the Federal Employer’s Liability a comparative on damages does bar but diminishes recovery only itAct, is not even basis. Under the Federal negligence Safety Appliance the defendant established case. The verdict favor of part this instruction never reached the issue to would damage jury have applicability. instructed that could contributory negligence jury Federal diminish under the serve to or

only mitigate plaintiffs damages count; that contributory Act were instructed Employer Liability was no defense did not serve on negligence part whole or injuries resulting part to dimmish or mitigate damages of the Federal Act. from violation taken a series

The instructions informed fully jury the case. The could not have based on law of verdict applicable any would bar re misunderstanding plaintiffs negligence confusion on his covery part. the inadvertent failure to this instruction give

We whether question be error event where the fully instructed and the Illinois Pattern Instruction of the case defining negligence law reflects a full discussion of the closing argument Plaintiffs given. under the law contributory applicable be- negligence role we it is within the of men women of intel- competence ordinary lieve able to understand concept contributory to be ligence Jackson, these circumstances. Ill.App.2d under Johnson 485 (1963). N.E.2d im in allowing final is court erred contention trial

Appellant’s refers particular, appellant defendant’s counsel. proper argument by statement in his opening to statements made defendant’s counsel it plain One statement was was argument. such closing and. course, air Of tiff’s to check the and the hoses. duty system braking far as equipment had no to discover defects plaintiff duty safety Act is con railroad’s under the Federal liability Safety Appliance Co., 1946), R. 156 F.2d 877 Cir. (7th McCarthy Pennsylvania cerned. 635. Another cert. 329 U.S. 91 L.Ed. 67 S.Ct. denied (1947), brakes, effect, was, statement that there no evidence of improper was he the brakes and had found since testified that had checked plaintiff A the effect that them to be third statement was to working properly. should consider s own contributed jury plaintiff accident, since he was the one checked brakes. who that the were admitted contends statements appellee because, hand, one of em on duties they correctly plaintiffs described Act, and, Appliance relation to ployment duty Safety hand, on the other aimed at there fact no showing was did Act. Plaintiff that he Safety Appliance violation testified that the system air hoses which activate the couple braking this other evidence system properly; appeared functioning air braking was to show that there no defect competent the allegations as the It also material to one of jury found. system, that the defendant failed to the brak negligence, negligently inspect While was no defense to the ing system. plaintiffs negligence alleged Act, it Safety Appliance mitigation violation of important under the Federal Act. The damages Employer’s Liability jury fully these see instructed on of defendant’s and we no error aspects liability, in the arguments statements or complained of.

Counsel for should have explain allowed as to the defen- applicability any negligence plaintiffs part dant’s under the Act and the Federal Em- liability Safety Appliance action, Act. Where two acts are in one ployer’s Liability conjoined some Plaintiff apparent may present objects confusion. that the court sustained railroad’s to his that it objection argument did not matter what did as far as the train system braking was concerned. Plaintiff’s counsel without ob- immediately explained conduct would not matter jection plaintiffs if jury found violation of the Act. have examined the record this case

We while not free closely, re- require error which error, it free from prejudicial from find is affirmed. the trial court versal. Accordingly, judgment Affirmed.

JONES, J.,P. concurs. MORAN, dissenting:

Mr. GEORGE J. JUSTICE testimony into evidence court erred allowing I the trial believe Curtis White the way about there had any complaints never been issue, his inis an employee the character of handled his When engine. are confined shown; however, which not statements be reputation may Illustrative into evidence. to allowed reputation should in Staunton 125, 75 N.E. 770. Bub, Co. v. is Staunton Ill. point Coal resulted miner, a which to for damages injuries volved an action had been to hoist signal before hoisted the cage when engineer employer alleged his given. complaint plaintiff In raising to the engine incompetent employee operate permitting an to have the sought The defendant coal company and lowering cage. re ever as to had testify mine and his assistant whether manager of the engineer concerning incompetency ceived any complaints re ever as to whether had any injuries without a hoisting signal ex these Both of questions sulted from acts of engineer. court; to however, trial the witnesses were permitted cluded as an The Illi engineer. as to the employee’s general reputation testify that the evidence confined nois Court held had Supreme Bub, 125, Staunton Coal Co. v. 128. Ill. general reputation. court, White objection plaintiff, permitted In this case the over he way about the that there had never been testify any complaints such into evidence over testimony plain- engine. allowing handled lack trial court erred. Statements as to the of com- tiff’s objection, the community individual are not particular part made about plaints are beyond individual’s character. Such statements estimate of that and, therefore, can tend to only when admitted reputation bounds of mislead the jury. an instruction give defining

The trial court also erred refusing 12, instruction number contributory negligence, specifically plaintiff’s 10.03, 11.01, jury while IPI which instructed giving which was IPI to be free from When contributory negligence. had plaintiff duty 11.01, the defendant it had an objected, IPI stating tendered instruction on that issue it then sustained would offer. The trial court statement, defendant’s in- objection. In other spite defendant’s no. struction ever tendered the de- defining contributory negligence was fendant. cites the comments of the Illinois Court Supreme Committee 11.01, state Instructions to IPI 10.03 and Jury IPI that IPI 11.01 should be used whenever contributory negligence issue and that IPI 11.01 should be used with IPI 10.03.

The thrust of contention on this is that since con- appellee’s point tributory negligence not be a under complete bar recovery the Federal Act and a con- Employer’s Liability would not even be Act, sideration under the in favor Federal the verdict of defendant indicates that was not the court's prejudiced by refusal give Feist, IPI 11.01. cites McManus v. Appellee 76 Ill.App.2d 221 N.E.2d 422 for this contention. also Appellee points out the instructions should be as a series considered and that since the jury most, that at be, instructed could contributory negligence only factor, no error mitigitating reversible was committed.

IWhile with that in a agree case where contribu- appellee generally most, be, factor, could at the tory negligence a verdict for mitigating defendant negate would effect of not an instruc- any prejudicial giving tion defining negligence. Under the of this contributory circumstances case, not such an instruction constituted This giving prejudicial error. becomes when this issue the apparent especially viewing together with final issue raised by plaintiff. contends that the trial court allowing improper defendant’s refers state-

argument by particular, appellant counsel. ments made defendant’s counsel statement and in his opening One such statement was that it was closing argument. plaintiff’s duty the was, to check and the air statement braking system hoses. Another effect, brakes, that there nowas evidence of since improper plaintiff that he the brakes testified had checked and had them to be found work- A statement was the third effect that the should ing properly. jury accident, consider own which the plaintiff’s negligence contributed to the since he one who checked the brakes. was contends that the statements were appellee admitted hand, because, on one duties em- they correctly plaintiffs described and, hand, other were aimed at there ployment, showing no violation of I cannot Safety Appliance agree was Act. with to consider these allowing jury statements of defendant’s appellee; counsel error. prejudicial circumstances, even a true statement

Under certain can be prejudi- is harmful, It not statement is misleading. itself which but cially used in when it is rather carried statement implication with 391, Leonard, 99 Ill.App.2d v. given context. Such is the case Osborne 396, 769, stated: N.E.2d court the fact statement of into opening

“The introduction defendant’s ticket, no inferred issued police officer investigating defendant was free of was most guilt. damaging This and clear error.”

In the instant case the negligence jury contributory instructed Em be a the Federal factor if defendant violated only mitigating vio be a at all defendant ployer’s Act and would not factor if Liability in lated the However, the Safety Appliance Act. jury given struction and the was allowed to defining contributory jury negligence; hear an which tells them to consider argument plaintiff’s their checking braking argument verdict. This system reaching even no plaintiff’s allowed check of the brakes have though could relevance under the Pennsylvania Act. (McCarthy Co., R. 156 F.2d 877 7th Cir. cert. ( 1946), den. U.S. 91 L.Ed. 67 S.Ct. 635.) When counsel for the plaintiff attempted explain to the in his rejoinder Feigl’s conduct could have no effect on the defendant’s to adhere duty to and to comply pro with visions Safety Act, the Appliance objection to such an defendant’s explanation was sustained. This the error. matter compounded No how much faith put we the circumstances ability jury, instant case only confusion, could have left them in a state of detriment of plaintiff.

Considering improper argument, lack anof instruction defining and the contributory negligence, witness, improper questioning of White, Curtis I believe the entitled ato new trial. al.,

Wesclin Education Association Plaintiffs-Appellants, et v. Community Board of Education of Wesclin Unit School District Counties, Clinton and Clair St. Defendant-Appellee. 74-62; (No.

Fifth 1975. July District 4, 1975. Rehearing August denied

Case Details

Case Name: Feigl v. TERMINAL RR ASS'N OF ST. LOUIS

Court Name: Appellate Court of Illinois

Date Published: Jul 1, 1975

Citation: 332 N.E.2d 416

Docket Number: 71-241

Court Abbreviation: Ill. App. Ct.