*1 extreme brutality In view of stitution. omitted.] [Citations abused its below crime, that the court discre- do feel 100 to 150 years term from to a defendant sentencing tion 257, 264. 114, 123, murder.” 19 Ill.App.3d the crime of court sentencing, hearing of facts adduced at In view arbitrary oppressive that the court was trial say in no position for what appropriate that a of 75 to 150 years sentence deciding * * deliberate, senseless most coldly described trial judge I have heard of in career.” my ever killing Affirmed. CARTER, concur. JJ.,
EBERSPACHER v. Jr., Plaintiff-Appellee, Kapelski, Alton & Southern William al., et Defendants-Appellants. Railroad Fifth District No. 75-171 filed 1976. denied March Opinion January Rehearing 1976. *3 MORAN, J., G. specially concurring. J.
Dixon, Starnes, Nester, McDonnell & Belleville, of Stegmeyer, for ap- pellant Missouri Pacific R.R. Co. Williams,
Walker & P.C., Belleville, of for & appellant Alton Southern R.R.
Cohn, Carr, Korein, Brennan, Kunin & of East Carr, St. Louis of (Rex counsel), for appellee. court: the opinion
Mr. EBERSPACHER delivered JUSTICE Plaintiff, in the a cir- Jr., William filed two-count Kapelski, complaint that defendant County. cuit court of St. Clair The first count alleged the Employers’ under Federal Alton Southern Railroad was liable he on July Act U.S.C. 51 et sustained seq.) injuries Liability said The second course of his railroad. during by employment liable for alleged count that defendant Missouri Pacific Railroad was in maintaining crossing proximate railroad which was negligence cause of further suffered on The injuries August by plaintiff. in because he counts one plaintiff puportedly joined complaint two attributed was “unable to differentiate extent and of degree injury to each defendant.” After a trial were returned against verdicts $175,000; each defendant. assessed in the amount of damages The jury $105,000 $70,000 Alton defendant Railroad and against Southern defendant Post-trial each Missouri Railroad. motions against court defendant were denied. to this were separate appeals Thereafter defendant. by each perfected each
Before merits of the contentions raised considering the defendants must first address the motion to dismiss plaintiff’s of motion is based the fact “that to dismiss appeal. plaintiff’s upon failed of defendants-appellants requirements have with comply Court 326 in that filed the report Rule have Supreme they timely In defendants’ of court.” proceedings reviewing objections with that a in lieu of they motion to dismiss certificate plaintiff’s alleged filed Court Rev. record was Rule 325 pursuant Supreme (Ill. timely 110A, ch. Stat. that the of par. 325), report proceedings timely court, it filed in the trial and that “took himself to file upon have been the common record.” We find appears what now law only it to determine which had the unnecessary ultimately party responsibility since neither filing report proceedings clearly appears of of filing nor has been prejudiced by delay this court parties demonstrate In view the failure to report proceedings. plaintiff’s report and the short duration tire delay filing any prejudice dismiss we have decided motion to proceedings deny the merits the appeal. reach
On defendant Missouri Pacific contends that it was deprived appeal *4 a the the issue of of its to fair trial on issue of on right liability Southern, Defendant Alton & admitted contends damages. liability, who a fair the issue of Since the damages. that was of trial on deprived raised defendant Alton & Southern are concerned with by solely issues de- assessment we shall first discuss the errors damages, alleged the trial the issue its on claims prejudiced Pacific fendant Missouri liability. court, lends albeit disputed, trial the itself
The evidence presented lesser a greater to injured, plaintiff The was following analysis. to the Alton defendant employee duties as an extent, his while performing incident, but for liability admitted Alton & Southern Southern. the While plaintiff. incurred by the extent of the injuries questioned of this injury, and discomfort the pain under allegedly laboring motorcycle. During opera- had to drive his c.c. plaintiff occasion the railroad tracks crossed one of motorcycle tion of this plaintiff According plaintiff, defendant Missouri Pacific. maintained by him one of wooden immediately dislodged automobile preceding tie and struck this motorcycle railroad ties at the crossing. plaintiff’s came on its the air. down Although motorcycle was thrown into wheels, injuries tire aggravated claims that this occurrence plaintiff his sustained Alton employed by back he had while previously Southern. The action against premised Missouri Pacific was maintenance of the Missouri Pacific. Within negligent crossing by this context defendant Missouri Pacific claims that the trial court erred in its elicited admission of certain testimony by plaintiff.
Defendant Missouri Pacific first claims that the trial court erred in permitting to an admission of made plaintiff testify liability allegedly a “claim of Missouri by agent” plaintiff Pacific. The was first witness He testified that testify. while a recuperating hospital from injuries he at the railroad he aggravated crossing, approached by F. R. a Longo, agent” “claim Missouri Pacific. After responding to the affirmatively question: “Did have a discussion him as you with to the accident?”, circumstances of the “Did he tell plaintiff asked: what, if you that —.” At this any, responsibility counsel for Missouri point objected requested permission approach the bench. Out of the hearing stated, counsel for Missouri Pacific other among that his things, objection man, was based on the fact “that this Longo, as a claim had no agent authority to make such an admission that would be the railroad —.” binding upon Apparently, was over- ruled since to ask permitted the same question without evidence offering any on Longo’s authority to make admission on behalf answer, Missouri Pacific. A motion to strike the “He told me [Longo] accident,” Missouri-Pacific was responsible was overruled trial court.
As a rule general admissions are inadmissible as when hearsay made is not in person who with the privity against whom party
42 566; such are v. 89 Brotherhood (Callaghan Myers, introduced. Ill. of 106, 108 Railroad v. Board 348 Signalmen Zoning Appeals, Ill.App. of Thus, in an agent
N.E.2d
order to introduce a statement or act
43.)
by
he
or
as an admission it must
be shown
that
was
employee
(1)
first
such an
or
v. Terminal Railroad Associa
agent
employee (Washburn
tion,
95,
statement or
114 Ill.
.2d
that such
389), (2)
App
act
in and
he had actual
was made or done
about a matter over which
Co.,
Ill.App.2d
or
v. Mascoutah Lumber
6
apparent authority (Burgard
210, 127
under
by
N.E.2d
he
or acted
or
virtue
464),
(3)
spoke
Chicago
of his
as such
or
v.
authority
agent
employee (City
Jewish
of
an
389,
Ill.
Society,
117).
323
154 N.E.
While
Consumptives Relief
fact
authority,
to
his
of
agent
competent
or
testify
agency
estab
denied,
or
when
or
must
be
agency
authority,
disputed
ordinarily
lished
the acts
his state
evidence of
or conduct of
or
by
principal
ments to the
National Bank v.
agent or third persons. (Merchants’
Co.,
Nichols
223 Ill.
the fact nor
Shepard
28.)
79 N.E.
Neither
the extent of the
can
evidence
the purported
be
agency
proved by
declarations
agent’s past
Wigmore, Evidence
asserting agency. (4
§
at 176
ed.
at
rev.
McCormick on Evidence
(Chadbourn
1972);
§
10.78,
642 2nd
5
Evidence
at 428
1972);
Callaghan’s
ed.
Illinois
(
§
Card,
Manual,
174, at
(1964);
(1963).)
Illinois Evidence
Rule
201-02
Co.,
As stated in
Assurance
318 Ill.App.
Holbeck v. Illinois Bankers Life
296,
“The law is settled in Illinois that an cannot confer agent well estab- on himself and his or cannot be power agency authority Ill.App. lished what he said did. showing or by [Citations.]” 296, 304.) Co.,
See 401. King Chicago, Burlington R.R. 235 Quincy Ill.App. District, See also Beccue v. 236 Park 94 N.E.2d Rockford 105. In the instant case failed foundation counsel lay any and extent testi before concerning scope Congo’s agency eliciting fact, In at the mony concerning alleged admission from plaintiff. time such employ was elicited sole "evidence” of testimony Congo’s ment Missouri Pacific supplied by question propounded was and the counsel for the this plaintiff. question objected While was “claim counsel for to characterize as a willing Congo Missouri was Pacific, denied for Missouri counsel agent” expressly for Missouri Pacific an had the to make admission of Congo authority responsibility behalf Missouri Pacific. the trial court should Cognizant denial before Congo’s have on the and extent of required proof scope authority Milan, 94 Grubb v. Ill. admitting plaintiff’s testimony. (E.g., testi- admit such error to In the absence of such 927.) proof N.E. court did Since the trial Missouri Pacific. over mony subsequent proof testimony the admission of not condition sub- if determine its need not ruling, otherwise reserve authority extent and of Longo’s that the scope established sequently admissions of responsibility sufficient to make Longo binding sub- note, however, that the only on behalf of Missouri Pacific. doWe testimony own sequent authority Longo’s “evidence” Longo’s earlier, which, authority. is insufficient establish such as we stated considerations is in way premised upon conclusion no foregoing of either the res to the rale or gesta exception hearsay principle *6 case. the ultimate issue the give not his opinion witness may of The facts the instant case from the perimeter herein remove present either rale.
Defendant Missouri Pacific next that the trial court erred contends the over to state an permitting plaintiff, objection, opinion regarding condition of the in a that ‘lag screws” wooden tie. After testified plaintiff “There was bolts that come the surface of lag two had up above [sic] the tie and was bent and and straight over shiney [sic] [sic] [sic] wear and tear” counsel for Missouri (emphasis added), from He stated objected. basis his is based following “It objection, and upon I don’t speculation conjecture. object to of where portion he indicated were, far the how but think the of it is pure screws I rest This speculation.” objection was overruled the trial court. On appeal Missouri Pacific contends that the emphasized testimony of this portion was the plaintiff’s and opinion should have been stricken since it in- vaded of the province Plaintiff jury. counters by arguing Missouri Pacific’s insufficient objection was to raise the issue of whether this invaded the testimony of the province jury.
As a
rale a
general
specific objection
limited to the ground or
grounds
and
specified
waives
not
ground
any
specified.
People
(E.g.,
Brent,
ex rel. Blackmon
438,
97 Ill.App.2d
Albeit we agree plaintiff with dowe testimony, of the did not "lag require expert condition screws” witness, entitled to present find that as a not plaintiff, nonexpert Am. condition. (31 his on what he believed caused their opinion present As we at 705 Expert Opinion §147, (1967).) Evidence Jur.2d Short, 125 stated in State Farm Mutual Automobile Insurance Co. v. 103, 260 N.E.2d 418: Ill.App.2d or his give opinions witness “Generally, nonexpert may conclusions, facts.” but must confine his to a testimony report did, however, We note the to this rule: following exception general “* it a -¡j-js it is not when practicable weII-estabIished as to before the all the facts in such a place primary jury way conclusion,
enable the an who to form witnesses intelligent have had means of observation state their may opinions personal conclusions, formed from such facts and circumstances such opin- come under their observation. The which ground upon difficulty ions are held to be admissible is the impossibility tire data reproducing observed witnesses.” 418.) find We do not statement of to fall within opinion describe, Here the was able to exception. objectively, present num- “lag condition of tire screws.” Combined with this were testimony erous the railroad crossing. Two these photographs photographs and, taken the accident were after by plaintiff shortly according ties condition and plaintiff, represented] position “correctly at the time of the accident.” neither these While were photographs *7 screws,” of the one did “lag 2) exhibit no. close>-uppictures (plaintiff’s the bent condition and show of one screw” “lag protruding aspect of several other If in- “lag screws.” considered this plaintiff photograph sufficient to condition of screws” this depict “lag photograph been In enlarged. could have view of this evidence conclude we no would entitle him plaintiff possessed “special knowledge” which to his the cause of the condition of present opinion concerning present it screws.” was error for the trial court to admit “lag Consequently, such testimony.
Defendant Missouri Pacific also contends that the trial court “erred in defendant’s overruling objections to of Harold testimony Hoep cause of the condition of finger regarding lag screws whether might another screw have been used.” Pacific first type lag Missouri in claims that the trial court erred to permitting Hoepfinger answer in “Have found these truck question: you your years repairs crossings * * (cid:127) these crossings since truck traffic maintaining heavy
45
ties,
Pacific ob
to break?” Missouri
causes
screws
using
lag
highway
counsel
After
to the
“as based on
jected
question
speculation.”
the witness
here,” the trial court allowed
stated “there is no speculation
this
claims that
Pacific now
if
knows.” Missouri
answer “only
he
however,
Since,
the objection
facts
in
question assumed
evidence.
the trial court of
insufficient to inform
stated Missouri
ex rel. Blackmon
People
deem such
objection,
waived..
Brent,
v.
Missouri contends that the trial court erred to answer the use of thicker or thinner Hoepfinger questions concerning lag screws. The basis that the failed to contention is establish that other find it “lag screws” were available. unnecessary We to discuss this since argument the record reflects that Hoepfinger testifying to the “And if hypothetical question, they [Missouri Pacific] had chosen to screws of a circumference and give you lag thinner much * * *” less use you would those Missouri Pacific heavy when ob- “unless it is jected established that there were certain screws avail- lag able or were at the time of the accident.” The question was not directed to available but rather technology, indiscriminate use Hoepfinger’s fact, he equipment In given. question concerned thinner screws which would have been less suitable. It followed a line of inquiry in which Hoepfinger stated that there was nothing him from prevent screws, using he, thicker lag had Hoepfinger, nothing do with used, what type of screw is that he used the material his supplied by superiors, that he would use whatever type “lag screw” his superiors chose to give him. Since no objections were interposed to any of these preceding questions, we find in no error the trial court’s ruling.
Missouri Pacific contends that the trial court erred in giving two
instructions proffered by the plaintiff. Defendant
&Alton Southern joins
to one
objecting
of these instructions. These errors have been waived
by defendants’ failure to abstract all the instructions.
Dempski Demp
ski,
27 Ill.2d
734;
187 N.E.2d
Gillespie v.
Co.,
Western Ry.
Norfolk
420;
Bear v. Holiday
America, Inc.,
Inns of
1 Ill.App.3d
This concludes our review of the issues Missouri Pacific asserts as grounds entitling to a new trial on the issue of In liability. summary, we have concluded that the trial court committed error permitting plaintiff to testify Longo’s alleged admission of responsibility behalf of Missouri Pacific without proving extent and scope Longo’s and in authority permitting plaintiff to state his opinion on the cause condition present of the “lag screws.”
We reviewed the standards for appellate review to determine if 46 831, Smith, v. 17 Ill.App.3d is in Cargnino
error
harmless or prejudicial
stated,
“In v. Cortesi 2 Ill.2d Duffy (1954), exist, it com shown to will error is Court stated: ‘Where Supreme the error reversal, shows affirmatively unless record pel 2 Ill.2d 338.)’ 228 Ill. Hogan, not Co. v. prejudicial. (Crane at 517. 494, the 511, N.E.2d 31 Ill.2d 202
In Both v. Nelson (1964), course, error, that will Court said: ‘It is not every Supreme not affect that an error did a it require appears reversal. Where the entire below, can see from the outcome the court where done, or decree will that no has been the judgment record injury one the case is a close not be disturbed. But where [Citations.] way, any decided either facts, on the and the have might jury in the scales favor substantial error have might tipped which Hill-Thomas the successful calls for reversal. party (Edwards Co., and 180; & Ill. Chicago, Burlington Quincy Lime Cement 378 Warner, Ill.2d at 514.” Ill. 538.)’ Railroad Co. v. 108 Ill. 31 831, App.3d 833-34.) “the that error was unable to record shows
Being say affirmatively as stated Roth v. v. Cortesi or prejudicial” required by Duffy favor, in con- Nelson that the did not the scale tip plaintiff’s errors against clude that these errors reversal of the entered require judgment a Missouri Pacific remandment for new trial. & next consider defendant Alton contention that
We Southern’s denied a the issue assessed dam- damages. jury fair trial on $70,000 in the & Alton & South- against amount Alton Southern. ages ern trial in first claims that court erred one of giving abstract all instructions. As noted earlier in this the failure to opinion, instructions constituted waiver of issue. in Alton Southern next contends that the trial court erred overruling its reference to the effect of inflation in his closing to plaintiff’s Co., cites York Alton Southern Raines v. New Central R.R. argument. 294, 129 263 N.E.2d of its contention that support Raines the “evidence” of future trends In inflationary improper. ap court the use evidence pellate opinion concerning concluded inflation future trends tire inflationary difficulty hedging against tire in its deliberations and should have served been prejudice excluded. Court reversed the court in Raines v. Supreme appellate Our Co., New York Central Railroad 51 Ill.2d cert. denied, 34 93 322. It did U.S. L.Ed.2d S.Ct. so without of the admission of evidence reaching inflation. propriety concerning sufficient Instead, evidence” held that there “other proper court *9 our Supreme followed by A similar was approach to verdict. support 572, 266. Salem, Again, 284 N.E.2d in v. 51 Ill.2d City Court Meador verdict. support sufficient evidence” “proper court found F.2d 485 1973), v. Inc. Cir. Sterling Drug, (3d (Compare Hoffman trends thus that of future 132.) inflationary It before “evidence” appears error, must determine that as a court may reviewing even be considered the verdict is not evidence.” proper “other supported by
Likewise, the issue damages for this court to a trial on grant new on the an argument by basis of and improper allegedly inflammatory counsel for the record must some resulting prejudice. show While believe counsel’s comment that have a lot of malpractice “I insurance, he can sue me and collect all those damages” grossly since an to such sustained and the improper, comment was it, instructed reversal and remandment must disregard be predi cated on a finding resulting defendants. Nelson prejudice (See 769; v. Union Rope 69, Wire 31 Ill.2d 199 N.E.2d Whiteside v. Corp., Evers, 1089, 254; Arnold, 13 Ill.App.3d 302 N.E.2d Bruske v. Ill.App 100 428, .2d 191, 132, 241 N.E.2d 44 Ill.2d 254 is N.E.2d This aff’d, 453.) true particularly when the action accrues under Federal Employers’ Act Co., Liability U.S.C. 51 et v. Missouri seq.). Rogers R.R. 500, 493, 352 U.S. 443; Toledo, 1 L.Ed.2d 77 S.Ct. Mitchell v. Peoria Co., 1, Western R.R. 782; 4 279 N.E.2d Ill.App.3d Pennsyl v. Woodruff Co., vania R.R. 52 113; 202 Ill.App.2d N.E.2d McCorkel v. Pennsyl Co., vania R.R. 32 177 N.E.2d 369.
The ultimate question is whether either of the errors alleged to the operated of Alton & prejudice Southern or otherwise inflated the verdict returned jury. the evidence Considering includ presented incurred, that ing of medical expenses lost, of wages of the reduction anticipated earnings lifetime, over the plaintiff’s pain suffering, and of the restrictions on any strenuous physical activity, which supports verdict, as as jury’s well competent testimony which attributes a substantial portion of such Southern, to Alton & damages it is our con clusion that neither of the errors here presented would justify reversal $70,000 verdict returned against Alton & Southern. It does hot from the appear amount of the verdict returned against & Alton Southern that such verdict was influenced statements complained of or result of passion or prejudice. (Affleck Chicago North Western Co. Ry. (7th 249; Cir. 253 1958), F.2d Avance v. Thompson, 320 Ill.App. rev'd on other grounds, 387 Ill. N.E.2d 57.) Consequently, the record before this court we cannot substitute our judgment to the amount proper to be awarded for Co., 62 Ill.App.2d v. Pennsylvania
that of the
See Underwood
R.R.
jury.
134,
For the reasons stated the entered on jury’s judgment Railroad. as it relates defendant Alton & Southern affirmed insofar Railroad, however, As the defendant Missouri Pacific judgment is reversed and this cause is remanded for a new trial. in directions.
Affirmed reversed remanded with part, part, CARTER, concurs. J., MORAN, concurring: GEORGE specially
Mr. JUSTICE J. holds that I concur in the which opinion, except portion majority testified the trial court erred holding plaintiff erroneously and tear. bolts were from wear lag straight shiny *10 Ehret, Donald L. Plaintiff-Appellee, Cross-Appellant, Worley, Grace Defendant-Appellant, Cross-Appellee. District 75-239
Fifth No. 27, 1976. denied filed Opinion January Rehearing February 1976.