Luther v. Norfolk & Western Railway Co.

Division, Motor similar to Rockett v. Chevrolet This case is also Corp. Motors 31 Ill. General

769, where the court stated: possible disprove all other

"It is true that need not true, however, jury may equally that a not causes. engage It is [Citation.] conjecture. In speculation [Citation.] order in mere quantum of evidence a case to the there must be submit that the asserted give to a reasonable inference sufficient to rise true, on a lesser factual for to arrive at that conclusion fact is basis speculation. In the case at necessarily require sheer would accident, equally possible causes of the there exist numerous bar actual plaintiff were the to conclude that those asserted and causes could guesswork. through gross accomplished an exercise of be alone, Thus, the causation element on the basis of granting a directed properly in verdict trial court acted jury.” removing the case from the consideration that, the failure of opinion, his expert Plaintiff’s never testified the wrench design specifications did cause comply the wrench to only that it using it. He testified apart to come while comply it not apart came because did possible that the wrench any infer- to allow simply This is insufficient specifications. with the as to the jury only speculate probability and invites ence of my opinion, the trial court coming apart. In cause of the wrench theory of li- favor on this a verdict properly directed this is- join majority’s opinion on ability. Accordingly, I cannot in the sue. WESTERN LUTHER, Plaintiff-Appellee, NORFOLK AND v.

JOHN D. COMPANY, Defendant-Appellant. RAILWAY Fifth District No. 5—93—0530 May 1995.

Opinion filed LEWIS, J., dissenting. Niehoff, Thompson & Mitch- both of and William J. Karl D. Dexheimer

ell, Belleville, appellant. for Halloran, Hale, Jackstadt, Callis, Callis, Jensen, Bailey & Papa, Lance Edwardsville, Sathre, appellee. City, and Jeanne of Granite opinion of the court: delivered the GOLDENHERSH JUSTICE Company, appeals from Defendant, Railway and Western Norfolk Luther, brought in an action plaintiff, John judgment in favor of (45 (FELA) Liability Act Employers’ the Federal plaintiff under (1988)), allegedly sustained while injuries seq. for back U.S.C. 51 et § County of Madison circuit court laborer. The working as a track $1,572,500. De- awarding plaintiff verdict judgment on entered (1) directing a verdict trial court erred fendant contends contributory negligence; on the issue against defendant ir- (2) inapplicable and admitting erred in evidence the trial court (OSHA) (29 U.S.C. Safety Health Act Occupational § relevant (3) (1988)) permitting in erred regulations; the trial court seq. et tapes of of defendant’s surveillance present evidence plaintiff to (4) expert to permitted plaintiff’s improperly the trial court plaintiff; (5) erred in trial court opinions; undisclosed give previously trial; during and amendments to file numerous permitting plaintiff prejudice. (6) passion and product a was excessive the verdict We affirm.

I in the course sustained injury plaintiff an arose from This action gang in an extra a laborer as track employment for defendant of his from 1979 position this rail. Plaintiff held defective replaced at the assigned to work was August On until 1988. foreman, and Plaintiff, Burg, Missouri, William jobsite. Jennings, Usually, gang. foreman, the extra James, comprised assistant Mike gang. part additional laborers to five anywhere from three were The men only laborer. was the day, plaintiff particular this On Jennings, Mis- line at the main track on replace defective assigned to time, track working under shorthanded gang souri. complete work on to of time a certain amount gang had meaning testi- Plaintiff schedule. with the train interfere as to not the track so work, shortly arriving plaintiff, Burg, James fled that after they company pick up truck to Yard to the material took the Luther up morning. plaintiff picked The materials needed for work bolts, spikes, pairs angle and 20 bars. Plaintiff stacked included alongside picking the materials the tool boxes in the truck bed. After material, up gang begin headed for the mainline tracks to rail, replacing the rails. To remove the rail is cut defective defective Then, 10-foot-long a rail into three into section. defective is cut pieces, placed piece weighs in Each rail which are the truck bed. pounds. about 110 Plaintiff that at testified the time of oc- currence, pieces there were about 8 to 10 of defective rail in the back truck, along gang with other tools and materials the used that morning. gang jobsite, Burg

As the was about to on to the move next told away put the rail had saw which been used to cut out the weighs The. rail pounds. defective rail. saw about 40 Plaintiff climbed bed, onto the back of the truck him and James handed the saw. grabbed Plaintiff the saw spot and turned around in the he where standing and looked place lay for safe the saw down. Plaintiff space observed a clear near normally the box where the rail saw is storage stored. The box is located in the front of the truck bed near go directly cab. Plaintiff testified he could not to the saw box due pieces Further, of rail and other in materials the truck bed. place testified that he could not the rail top saw on of the pieces rail, bars, angle of old and debris because the of the rail blades easily chip, thereby creating safety saw could damaged hazard —a Moreover, blade "explode” could cause the saw to in while use. place the rail top saw on company debris a violation of safety navigated way rules. Plaintiff clearing, his to the bent his knees, place and reached out to in space. saw the vacant As he out, plaintiff knees, reached fell dropping to his the saw. Simulta- neously, plaintiff sharp pain Burg felt a in the middle of his back. hopped plaintiff. Burg onto the truck to assist testified appeared to in a pain. hospital be lot of Plaintiff asked to be taken to a pain grew as the worse. Another worker took to St. Hospital City, Elizabeth’s hospitalized Granite where he was accident, about a Plaintiff prior week. further testified that he experienced pain. never back Plaintiff stated that since the ac- experiences cident he pain problems constant back with associated his extremities.

Burg responsible keep- and James testified that laborers are for ing Burg the truck bed clean. stated that the foreman determines when, during day, up Burg fur- laborers to clean the truck. that, occurrence, ther day gang only testified on the had a time constraint. laborer, they working were under plaintiff, and one conditions,] intentions I had no Burg of these "[Because stated: it as a truck because we used anyone clean the back of the having day.” throughout Ad- we used working platform for the materials safety policy not have a Burg that defendant did ditionally, testified working. keep truck beds clean while crews to requiring work Shitut, surgeon, orthopedic an physician, Dr. Ravi Plaintiff’s disease, which is degenerative disk plaintiff suffers from testified that Shitut, According to Dr. this aging process. by normal caused explained accident. Dr. Shitut aggravated condition was it involves three disks. inoperable because plaintiff’s condition is that is, in Dr. Shitut’s degenerative disk disease Surgical treatment for that Dr. Shitut stated at the most. limited to two disks opinion, disease are degenerative and disk symptoms pain of back plaintiffs plaintiff available for that treatment permanent and area, taking anti- and exercise, the affected using heat on Regard- analgesic-type medications. and nonsteroidal inflammation job, Dr. Shitut testified laborer’s ability to return to his ing plaintiffs his work is unable to resume plaintiffs injuries, he as a result of that laborer. as a railroad physician also examined company

Defendant’s pain, did not conform to lower back plaintiff, that due determined Testifying as a position of laborer. required for the standard rheumatologist Atkinson, defendant, Dr. John expert for medical Upon his review plaintiff. examined specialist, also and arthritis Dr. plaintiff, examination of physical and a plaintiffs medical record secondary degenera- not have that did Atkinson determined Further, degenerative disk disease. suffer from arthritis but did tive explanation find a medical that he could not Dr. Atkinson testified and recommended that continuing discomfort plaintiffs his muscle tone work-hardening to increase program undergo a strength. Grossman, Leroy testified expert, Dr.

Plaintiffs economic trial, the time of injury and years plaintiffs the four between opined $77,704 wages. Dr. Grossman in lost a loss of plaintiff suffered trial, future lost would suffer time of the age 38 at the plaintiff, figure would that this $536,785 age 63 and if he retired earnings age 66. $589,618 plaintiff retired at if rise to and vocational Strader, counselor rehabilitation plaintiffs Jack and suffered learning disabled expert, testified injury. As a back pain due to his continuing depression from employable. Strader presently factors, was not result of these difficulties, prob- he could these plaintiff overcome opined that should unskilled, minimum ably employment wage job secure in an such as /maintenance-type custodial work. expert testimony occupational

Defendant offered from an therapist Douglas Cole, and a rehabilitation counselor. an oc- cupational therapist, testify regarding plaintiff’s ability was called to perform reviewing records, After plaintiff’s opined work. Cole plaintiff perform sedentary, light- could work at the or medium-level categories restrictions, highly repetitive squatting, with such as no kneeling, bending England, or activities. James a rehabilitation coun- selor, plaintiff’s also reviewed plaintiff records and recommended that tutoring receive on-the-job training or in order to enter into a new plaintiff’s record, career. Based England opined on types plaintiff do, work can training, drafting, additional include technician, dental cabinet-making, locksmith, lab engine repair, small taxidermy. evidence, At the close of all the plaintiff filed a motion for directed verdict on contributory negligence, the issue of which the trial court granted. The trial court denied defendant’s motion for directed verdict on the issue of contributory the affirmative defenses of negligence mitigate and failure to damages. returned a verdict favor of and awarded

$1,572,500 damages. The trial post-trial court denied defendant’s judgment motion for notwithstanding the verdict and for a new trial. Defendant appeals. now

II Defendant argues first directing that the trial court erred in verdict for on contributory negligence. the issue of Defen- that, trial, dant contends at sufficient evidence was adduced of plaintiff’s knowledge allegedly dangerous condition and of creating fault in by failing the unsafe condition to clean the truck argues bed. Defendant that because there was evidence plaintiff’s contributory negligence, the trial court should not have but, rather, directed a verdict for it should have submitted the issue of plaintiff’s contributory negligence jury. to the dis-We agree. case,

It is well established that in a FELA the defendant is contributory entitled to a negligence instruction if there is evi (Pruett support theory, dence to Ry. v. & Western Co. Norfolk (1994), 29, 33, 652, 261 App. 655; Ill. 3d 632 N.E.2d Uhrhan v. Union Ill;. 1187.) (1993), 1182, R.R. Co. 155 617 N.E.2d Pacific Nonetheless, proving plaintiff’s contributory negligence the burden of 1187.) (Uhrhan, 547, on the defendant. 155 Ill. 2d at 617 N.E.2d at 22 " contributory negligence 'a careless as supreme court defined

Our dangers tending to add new plaintiff’s part on the act or omission permitted to ex employer negligently created or conditions that ” added.) (Uhrhan, 548, Ill. 2d at 617 N.E.2d (Emphasis ist.’ (9th 1986), 1187, Burlington R.R. Co. Cir. quoting Taylor v. Northern 1309, granted when Directed verdicts should be 787 F.2d evidence, light opponent, in the most favorable all the viewed contrary based overwhelmingly the movant that no verdict so favors R.R. stand. Pedrick v. Peoria & Eastern on that evidence could ever (1967), Ill. 2d 229 N.E.2d 504. Co. that the negligently acted maintains that

Defendant that, testimony inferred jury could have disbelieved occurred, failed to merely the fact that the accident based contention, relies on support its due care. To exercise Ill. 2d R.R. Co. Uhrhan v. Union Pacific 1182. switchman, was Uhrhan, working night as a plaintiff,

In the walking alongside piece a of wire while injured tripped he over when the light in the area where There was no the tracks. The lanterns However, a lantern with him.

working. the had the area while and to illuminate signal other switchmen were used to possibility of Plaintiff was aware of the walking through yard. the Also, safety requir- rule the railroad had a alongside the track. debris trial, the hazards. At tripping the lookout for ing workers to be on $17,000. The him plaintiff and awarded jury found in favor of the had been 40% contributor- that the jury further determined accordingly. Judgment was recovery negligent and reduced his ily $10,200. appel- of plaintiff in the amount in favor of the entered contributory negligence, find- finding jury’s late court reversed the contributory negligence warranting submission of ing the no evidence appellate the supreme court reversed jury. the Our instructions to a entitled to have in a FELA case is court, holding a defendant any evidence contributory negligence if there is jury instructed on Further, found that evidence supreme court theory. support contributory fact as to question raises safety rule violation jury that a could have Thus, concluded supreme court negligence. actions added additional reasonably determined dangers to the situation. According misplaced. is on Uhrhan

Defendant’s reliance if evidence there Uhrhan, record to determine review the dangers added additional or actions plaintiff’s omissions danger increased or omissions If actions situation. contributory issue of to raise the himself, is entitled defendant However, negligence. entitled to reach the on is not contributory negligence, the issue of for which defendant bears proof, nothing burden of more than defendant’s disbelief of (Dixon (6th 1973), plaintiff’s testimony. v. Penn Central Co. Cir. F.2d "Other proved evidence matter to be must be Dixon, adduced.” 481 F.2d at 837.

Here, there is no any company evidence that violated safety Burg plaintiff’s injury rules. testified that at time there safety requiring were no rules up to clean laborers truck bed af ter completion jobsite. Further, gang work at each operating one laborer and under a get time constraint quickly the work done so as to disrupting avoid rail traffic. Addition ally, while defendant used other vehicles to deliver new rail to each site, there corresponding arrangements were no for removal of defec tive rail piling and debris other than it thereby onto the truck bed creating the hazardous condition under which worked. More over, plaintiff, exercising care, due checked for hazards and decided lay nearby the saw a space safely vacant because he could not reach storage the rail saw safely put box or top saw on of old Thus, rails. his conduct depart did not from reasonably that of a (Tiller prudent employee in this situation. v. Atlantic Coast Line R.R. 54, 68, Co. U.S. 87 L. Ed. 63 S. Ct. 451- 52.) We find contributory no evidence of negligence and conclude that the trial properly court plaintiff. directed verdict for

Ill argues general Defendant next that a preclude verdict does not this setting court from jury’s aside the verdict because the trial court improperly admitted highly prejudicial irrelevant evidence of alleged defendant’s regulations violation of OSHA inap- which were plicable to the facts unpersuaded of this case. We contention. 1201(d) (735 Under section of the Civil Practice Law ILCS 2— (West 1201(d) 1992)), general any verdict can be sustained on

5/2 — liability several bases of and will not be impair reversed due to the (Witherell ment (1987), of one of the theories. v. Weimer 118 Ill. 2d 321, 329, 68, 72; (1970), 515 N.E.2d Moore v. Jewel Tea Co. 46 Ill. 2d 103.) 288, 1201(d) 263 N.E.2d provides: Section 2— 2—1201. Return Separate "§ counts —Defective or verdict — unproved counts. * * * (d) grounds recovery If pleaded several support are of the claim, counts, same whether in the or same different an entire rendered for shall aside or verdict that claim not be set reversed defective, ground the reason that if one or more of the verdict; grounds the the is sufficient to sustain nor shall verdict be support aside or reversed for the reason that the set evidence thereon, recovery any ground is sustain a insufficient to unless jury before the case submitted to a motion was made to ground jury from the on account of insufficient withdraw dence evi- appears prejudi- and it that the denial of motion was 1992). 1201(d)(West cial.” 735 ILCS 5/2— Here, allegations defendant claims that of OSHA viola tions of the has inapplicable were the facts case. Defendant made no attempt to establish that the evidence was insufficient sustain liability. After carefully examining verdict as record, ample support the jury’s we conclude there is evidence to assuming, alleged verdict. Even that the OSHA arguendo, evidence allowed, improperly the other was sufficient violations was evidence negligence the jury. to sustain the other theories of submitted to Furthermore, jury, of the before submission case to the defendant ground could made a motion "to withdraw that from the have (735 1201(d) (West on account of insufficient evidence.” ILCS 5/2 — 1992).) However, so, having cannot now failed to do seek predicated upon infirmity of one reversal of the verdict of the liability. Accordingly, we find no basis for reversal on this theories of ground.

IV argues permitting trial court erred in Defendant that the present tapes evidence of defendant’s surveillance because the evi- thereby totally highly prejudicial, creating dence irrelevant and punitive fair trial. atmosphere deprived which defendant of a photographic It established that video and exhibits is well outweighed by probative if is not admissible value exhibits (Drews Lines, v. Inc. danger prejudice. Freight of unfair Gobel (1991), 84, 99, 970, 977; v. Palos Com 144 Ill. 2d 578 N.E.2d Cisarik (1991), The munity admis Hospital 144 Ill. 2d N.E.2d is within the photographic sion exhibits into evidence of video Ill. Carney Smith sound of the trial court. v. discretion 383. videotapes of surveillance of During trial introduced go- depicted plaintiff videotapes The plaintiff conducted defendant. represent about 50 hours of ing daily tapes about his activities. activity physical activi- and were intended document surveillance limitations physical asserted result- ties inconsistent However, videotapes not show ing injury. do from his performing physical activities inconsistent with his claimed limita- tions. plaintiffs controversy,

Because abilities are a matter in tapes probative surveillance were concerning relevant and had value plaintiffs the issue of the injury. (Carney, App. extent of 240 111. 3d at 383.) 657, 608 N.E.2d at urges Defendant this court to find prejudicial effect of videotapes substantially outweighs their probative videotapes value because the tend to corroborate both plaintiffs testimony testimony and the regarding plaintiffs medical physical capacity. However, limited prejudice we see no that defen allegedly by dant Therefore, suffered admission of videotapes. find that the trial court admitting did not err in videotapes into evidence.

V Defendant objections also raises testimony plaintiffs expert economist, Leroy Dr. Grossman. Defendant maintains that Dr. testimony (134 Grossman’s Supreme violated Court Rule 220 Ill. 2d 220) R. opinions because the expressed beyond were the scope of his original report deposition testimony regarding plaintiffs lost wages. (Singh Illinois, v. Air Inc. 165 Ill. N.E.2d figures presented in testimony Dr. Grossman’s at trial supplemental report earnings were based on the plaintiff’s co-worker, a operator. machine Although plaintiff is a laborer, track he also has operator rights, machine which are lower seniority roster. plaintiffs Because wages future based on a seniority system and since the co-worker’s classification comparable was plaintiffs, earnings co-worker’s were used Dr. Grossman plaintiffs to recalculate wages. future lost Defendant contends that the recalculations essentially original amended the report because the wages amount of future significantly lost greater. Defendant further contends that because failed to make supplemental report available to defendant until the eve of trial, defendant was adequately investigate unable to underly ing basis opinions. of the new Consequently, argues that it prejudiced by this nondisclosure.

Supreme 220(c)(3), Court Rule which discovery relates to the an expert’s opinion, states: Expert

"Rule 220. Witnesses * * *

(c) Discovery.

* * * (3) party required seasonably supplement A shall be his interrogatories propounded rule as answers under this ad party ditional information becomes known to or his counsel.” 220(c)(3). 134 Ill. 2d R. (c) paragraph

The committee comments further illuminate party’s obligation opinions to disclose modifications which may trial, stating: expressed be theory in prevent

"In order to an shift or belief undisclosed the report requires party seasonably a a rule that submit modified or taking supplemental expert’s in answers into account shifts* the 220(c)(3), 134 R. Committee Comments at 181. views.” Ill. 2d record, Upon review the conclude Dr. Grossman’s of theory did not constitute a "shift in or belief.” Dr. revisions Gross- update original supplemental report merely man’s an of the and methodology to the present used the same determine value of plaintiff’s wages. respect future With to the timeliness of lost plaintiff’s supplemental figures, disclosure defendant failed to of produce requested wage seniority shortly roster and list until hardly complain the start of trial. Defendant can about before given delay producing of disclosure its timeliness Additionally, requested permitted the trial court defen documents. figures regarding supplemental dant to interview Dr. Grossman Supreme There before he testified at trial. was no violation of Court Rule 220.

VI asks address is the trial The next issue defendant us to whether four by allowing plaintiff complaint sep- to amend his court erred day before the trial and the instruc- arate occasions between defendant, complaint According tion each amended conference. theory liability, thereby forcing by plaintiff presented filed a new of legal preventing constantly respond to new theories defendant the end obtaining it claim until of from full disclosure unfairly amendments the trial. Defendant asserts these prejudiced deprived case fair trial. its defendant lies within complaint an amendment The decision allow court, not its will be discretion of the trial decision sound v. Alton & (Grimming disturbed absent an abuse discretion. 961, 1086, 987, (1990), Ill. 562 N.E.2d Ry. App. Co. 204 3d Southern 1102.) permitting amendments given policy the liberal Specifically, evidence, allow, amend pleadings, may courts after the close materiality proof, "but their pleadings to ments to conform (Lawson v. Hill already apparent.” must be introduced evidence App. 77 Ill. The Lawson N.E.2d explain: court went on to recognizing ordinarily that an

"[WJhile amendment should not be permitted up pleader to set matters of which the had full knowl edge at interposing original pleading the time of and no excuse presented putting original pleading, not its substance in the such an justice amendment will be allowed where is not served denying amend; leave to doubts should al be resolved favor of lowing Lawson, amendments.” 77 Ill. 3d at at 625. case,

In plaintiffs original the instant complaint alleged as negligence provide plaintiff defendant’s failure to reasonably with a safe place to work. Plaintiffs initial amendments neither raised new changed underlying issues nor merely facts. These amendments allegations added additional negligence arising out of violations of (1988). regulations. OSHA seq. U.S.C. 651 et § The trial permitted plaintiff court to file his second amended complaint day jury on the began. granted selection The court defen- a 13-day dant permit continuance to plaintiffs to address allegations additional time, of OSHA violations. At that the court stated give defendant, that it would upon motion, written more time Further, if needed. the court advised defendant it would also postponing opening consider necessary statements should that be to ensure adequate defendant time to review allegations the amended and related law. At no time thereafter request any did defendant ad- ditional respond time to allegations. to amended respect plaintiffs

With fourth complaint, amended (45 new issue raised was whether the Inspection Locomotive Act (1988)) U.S.C. 23 applicable was particular § to the truck involved granted here. The trial court defendant’s motion to plaintiff’s dismiss complaint. fourth amended

Despite defendant’s contrary, contention to the the trial court’s allowance of these prejudice amendments did not defendant or deprive Therefore, him of a fair trial. we find no error or abuse of discretion in ruling the trial allowing court’s the amendments to the complaint.

VII Finally, argues that the verdict is excessive because it is based passion prejudice. on and Defendant contends that $1,500,000 relationship award bears no to the nature and extent of plaintiffs injury and the substantial plaintiffs evidence of contribu- tory fault. We find no merit in this contention.

Despite arguments contrary, defendant’s strenuous our nothing presented jury review of the finds at trial or in record passions prejudices opening statements to inflame the and of the clearly jury. importantly, supports jury’s Most record verdict. primarily damages ques The ascertainment and assessment of are peculiarly province jury of fact tions within the of the Ill. (Bridgeman determine. v. Terminal R.R. Association This not App. 3d 552 N.E.2d court will judgment its for awarded substitute that of as to amount any given (Bridgeman, case. 195 Ill. 3d at 1151.) Here, excessive, it the amount of the award not nor does judicial say no in this shock the conscience. There is basis record to prejudice passion part of the the size verdict is result of or on the jury. reasons, foregoing judgment For the of the circuit court of County Madison is affirmed.

Affirmed.

"WELCH, J., concurs. LEWIS, dissenting:

JUSTICE By any name "What’s in a name? that which we call a rose other II, Juliet, Shakespeare: act sc. would smell as sweet.” Romeo ii, 43. just I see disagreeing my colleagues,

I but cannot dislike contributory plaintiff’s negligence how is different from is, de- negligence. point proving had the burden of negligent, by proving did fendant was so employee that was so negligent. was defendant’s employee Who plaintiff. than If negligent? Why it was none other defendant, imputed how can negligence great as be was so be contributorily negligent? must not There say that "negligence,” depending meanings word different two being gored. ox is whose purposes a motion for directed verdict

The evidence for must construed contributory negligence be plaintiff on the issue (Pedrick R.R. Co. favorably v. Peoria & Eastern for defendant. most 504.) 494, Thus, showed (1967), the evidence 37 Ill. 2d 229 N.E.2d truck or bed of the plaintiff keeping the back responsible was have Plaintiff could and should orderly. He did not do so. clean and Plaintiff straighten but he did not. up, the truck taken some time to he path a to where the time to clear and have taken could should saw, place wished to the but he did not. Plaintiff laid could have the (this saw down on a vigorously tool box matter disputed), stepped was truck, over in positioned materials and himself better to move truck, Plaintiff, saw to the floor of the but he did not. after receiv- ing foreman, only the saw from the assistant place then looked for a saw, to set deciding, saw, instead of accepted before he where going place he was the saw. Plaintiff reached place out to the saw in a spot positioning small clear instead of himself so that he could straight bend his knees and set the Clearly, jury saw down. could party fact, find that the plaintiff. who caused the accident was the In you if accident, exclude acts as the cause of the there is not anyone any else or other agency point finger can at as the cause injury.

The facts in this case are more one-sided than the in facts Uhrhan v. (1993), Union 537, R.R. Co. 1182, 155 Ill. 2d 617 N.E.2d Pacific because in Uhrhan someone other than along left the wire tracks, plaintiff busy doing job by signaling his keeping eye his switchmen, on the other and at one time the railroad had recognized danger and hired people along to walk the tracks to up clean spite this, the debris. In supreme of all court said that jury should have been allowed to decide if should have been possibility aware of the alongside kept debris the track a bar, lookout. In the case at easily the evidence could be construed there person was not other agency or outside that caused the accident other than the himself. judge

The trial predicated ruling his in the case at bar ap on the pellate Uhrhan, court decision supreme which the court then re (Uhrhan, 1182.) versed. 537, 155 Ill. 2d Plaintiff, 617 N.E.2d in this appeal, shifted his reliance to this opinion court’s in O’Ryan v. CSX Transportation, (1993), Inc. Ill. 626 N.E.2d 374. No attention paid to the ranting raving contained the dis court, sent. The supreme however, did not reverse this court’s deci in O’Ryan. sion It opinion vacated the of this court without comment pursuant to its supervisory authority. (O’Ryan v. CSX Transporta tion, Inc. 155 Ill. 2d I do not claim to be genius, but I believe that the supreme sending court was this court a message. Simply put, courts quit devising ways should that remove (It contributory issue of negligence by jury. from consideration would be interesting jury to see what a would do in this case with the contributory negligence jury issue. Would the find the railroad negligent based on plaintiff’s acts or omissions and then find only 25% contributorily negligent, or would the find contributorily 100% negligent?)

30 not be a dispute

There does seem to that the trial in court erred allowing giving evidence and instructions late in trial the as to a new theory concerning Surely irrelevant OSHA violations. we should re- grounds verse on those alone. evidence, by

The plaintiff, admission into of defendant’s surveil- that, videotapes plaintiff interesting lance an most raises issue likely, increasingly will obviously confront the courts. Plaintiff wished prejudice jury against "spying,” the and apparently at plaintiff jury’s was successful when one looks the that verdict 34, injured awarded plaintiff, when he was more than twice the held, expected earnings job for a better than he for disease lifetime a possess overcome, injury many people that for an that eventually regardless taken, and precautions would suffer from of all prevent him injury require surgery for an not and did not did job. being procuring from retrained for and a less strenuous Should encourage legislature the courts or the surveillance weed out malingering plaintiffs, discourage should or the courts surveillance by videotapes merely allowing plaintiffs to use the show "spied” plaintiffs? defendants on against plaintiffs

At three least courts have ruled on the issue of (See using In- against defendants’ surveillance defendants. Hall v. (1995), 852; Photo Surveillance 271 Ill. 3d DiMichel v. Co. South Buf 1; Ry. Co. 80 N.Y.2d N.Y.S.2d falo (7th 1993), Scaggs Corp. R. Cir. F.3d v. Consolidated Whether by is a encourage courts or should not surveillance defendants should by legislature public policy question that should be decided Appellate trial confine supreme or the court. courts should only answering the the evidence was issue whether themselves relevant. in case is that did not introduce problem this life; rather, day

videotapes purpose showing a in his for jury against primary purpose poison was to "spying” plaintiff. videotape If the to be had shown problem I no with admis- suffering injuries, from his would have its Likewise, golf by plaintiff. plaintiff playing if the film had shown sion convertible, problem his I an offer leaping or into would have no with by by parties prove relevant or defendant. Both offers would be doubtful, bar, injuries. In it was disprove plaintiff’s the case injuries or however, videotapes exhibited either Moreover, "spied” did not or not defendant the lack whether thereof. injury thereof. The issue or the extent prove disprove or relevant, have been videotapes should if the were "spying,” even legislature we have some direction kept the trial until out of public supreme policy. or the court as to Finally, I do not believe that it is fair for either defen- or change pleadings, dant to theories contained either on the (If day during of or the trial. defendant had been allowed to add an during citing mandatory affirmative defense compliance the trial a authority, summary statute as would have reversed order.) especially This is party true when the raises Federal statutes. increasing This court has witnessed an number of cases where counsel at the last minute theory raises Federal statute and a new judge and talks the trial giving incomplete into instructions as to jury, that statute to the and we later discover that the statute does (29 not apply. even In this regulations case there were OSHA U.S.C. (1988)) (45 seq. 651 et and the Inspection Locomotive § Act U.S.C. 23§ (1988)), both of which apply. did not rewarding We should not be offending party, doing because all we encouraging both plaintiffs and defendants to wait until the last spring minute to surprise opponents. on their require courts should demand and parties trial; otherwise, define the issues before stop let us deluding ourselves that the courts surprise wish to remove an as ele- ment from the trial.

Accordingly, reverse, I very would as there was little about this trial that was fair. (Lutheran

In re BECK, ESTATE OF ARTHUR E. Family Deceased Missouri, Petitioner-Appellant, Roethe, Children’s Services of Dorothy v. L. Beck, Ex’x Deceased, of the Estate of Arthur E. Respondent-Appellee). Fifth District No. 5—94—0246

Opinion May filed 1995.

Case Details

Case Name: Luther v. Norfolk & Western Railway Co.

Court Name: Appellate Court of Illinois

Date Published: May 11, 1995

Citation: 649 N.E.2d 1000

Docket Number: 5-93-0530

Court Abbreviation: Ill. App. Ct.