*1 Ralston, Deceased, RALSTON, Romney RUSSELL Adm’r of the Estate of al., Defendants-Appellants. Plaintiff-Appellee, v. HAL W. PLOGGER et Fourth No. 4 — 84—0628 District 10, 1985.
Opinion April filed *2 TRAPP, J., concurring part dissenting part. Broom, Wilson, Burroughs,
Gordon R. Simpson, Hepler, & Broom Mc- Carthy, Edwardsville, for appellants. French, Phelps, French, Carlinville,
Dennis Carmody, Hasten & appellee.
JUSTICE McCULLOUGH the of the opinion delivered court: Ralston, The plaintiff, brought Russell wrongful this death action as of administrator the estate of Romney Ralston. After trial on the merits, a returned a defendants, verdict in favor of the Hal W. Plogger and Houlette & Seaton, court, however, Inc. The trial granted the plaintiff’s trial, motion a new and granted we the appeal Supreme defendants leave to under Court Rule 87 Ill. 2d R. 306. September
On nine-year-old Romney Raison was fatally injured when a pickup Plogger truck struck him. the driving was truck on behalf of his employer, Houlette & Seaton. The accident oc- curred on Emerson Airline Plogger Road at about a.m. 11:30 testified he first saw the a boy yards boy bike about 75 The was rid- away. ing west the the also edge traveling near left road. was Plogger at 45 or west about 50 miles hour in the lane. The made per right boy sharp a turn and started to come to the of the right Plog- side road. ger down, took his foot off the accelerator to slow but he did not ap- ply the brakes. He to his truck off the road to the attempted pull The right. left fender the truck collided the at the edge with bike of the road. truck off he Plogger drove his the road. When completely head the edge the with his lying he saw boy eventually stopped, the road. time attendants, at the scene a short who arrived
Ambulance four feet off the road. later, boy’s body the was about testified body 15 to 20 feet east the and between bicycle lying was by testified that tracks made of the attendants feet off the road. One feet road about 50 completely left the the had truck showed Stults, attendant, dep- was also the Thomas east of the That bicycle. site, him that he had seen At the accident told uty Plogger coroner. He his off the accelerator slow down. the and had taken foot boy mirror, he looked the had up boy rear and when glanced the view the then swerved to shoul- Plogger to come across the road. started hit der, Plogger rode onto the shoulder where but the his bike boy him. Ralston, father, testified that he observed
The decedent’s Russell road he arrived at scene. body four feet off the when son’s According off the road. to the dece- lying eight was feet bicycle father, the truck left the road by completely dent’s the marks made grandfather, east of the The decedent’s Sam about 125 feet bicycle. Ralston, bicycle edge testified the was 10 feet from the the road. left truck left Plogger’s they He the tracks and testified by measured Plogger 130 feet east of the He also testified that bicycle. road stayed had he would have if he had on the boy stated that missed road. Aulabaugh, sheriff, at
James arrived the scene around deputy six inches from the edge noon. He testified head was boy’s lying moved. no- Aulabaugh of the had been pavement. bicycle already ticed All three ground on the near the head. ambulance boy’s blood ground. attendants no on the From the testified there was blood truck, Aulabaugh tracks made the left wheels had determined off the road about two gone spot lay. feet before where body blood, body, place on the location Based where road, Aulabaugh determined point impact was at truck left the of the road. edge to ride on permission his son had Russell testified Ralston road, traffic righthand he on the side when get but told to off *4 he his taught testified that had approached. Russell Ralston further mother, Ralston, stated that signals. son hand Darlene decedent’s so, road. he he in- the was to ride on the If did was boy not allowed the structed to ride on side. righthand the did parents grandparents boy
The decedent’s and testified farm. He at- many chores around the house and around the family 94 public
tended school in Palmyra through the third grade. His teacher at that school described as Romney learning disabled and difficult to to performance motivate. Due his poor school, at the public his par- ents him private transferred to a school in Springfield. The family rented an apartment in for new Springfield year. the school Romney’s private teacher at the school testified the the boy grade was at first level, but he a Ravine, hard worker. Alan a certified school psy- chologist, examined in Romney July 1979. He in- Romney’s testified tellectual in potential was the low-average range. He Rom- described ney learning as years disabled two in delayed of development visual and motor skills. Ravine testified while that overall skills could have been improved, overall condition was inherent probably permanent. He concluded Romney would have been able to work only in highly supervised occupations such as a farm laborer. Fred Gott- heil, professor a of economics, testified the average boy Macoupin County $87,000 would earn in present cash value over his lifetime af- ter consumption.
On himself, November filed suit on plaintiff behalf of wife, daughters. and their two upon Based this court’s decision Bullard v. Barnes Ill. N.E.2d trial court struck from the plaintiff’s complaint allegations concerning loss society. of court later instructed jury that the decedent’s parents were entitled a presumption pecuniary substantial loss but that it could award for damages society. approxi loss After deliberation, one mately hour all jury returned a verdict “for against defendants and the plaintiff.” in Bullard. On June supreme court reversed our decision (Bu Barnes 1228.) Ill. llard The court there no presumption decided could of the loss earn be ings court, however, the death of a upon parents child. held were entitled to a to the presumption pecuniary due loss of a injury child’s are to be offset society. Damages child-rearing expenses. (102 517-18, August Ill. N.E.2d On trial, it granted plaintiff’s court motion for new had ruling refusing erred in that loss of jury damages society instruct were recoverable. Bullard argue ap not be
The defendants decision should plied to this was handed down 10 months after case because Bullard, In directed its supreme returned its verdict. court cases ***.” finally adjudicated decision be “in all similar applied (102 1228, 1234.) previ Ill. 2d The court has pro- defined “final as the termination of the last ously adjudication”
95
v. Grammer
393,
Ill. 2d
appeal. (People
(1976),
62
ceeding
and direct
those
ad
among
finally
conclude this case is not
371.)
342 N.E.2d
We
v.
of the Bullard decision.
Trotter Moore
the date
judicated by
Cf.
1011,
3d
The assert the errors defendants found their fa justify jury do not new because damages of error the extent liability. Allegations concerning vor on the issue of the are immaterial when it is evident that plaintiff’s damages v. Illinois Bell Mulvey Telephone not jury found defendants liable. Intraten v. Co. 591, 599, 689, 694; 2d (1973), 53 Ill. N.E.2d Thomas 709, 1339, 1344; 717, 54 Ill. 3d 369 N.E.2d (1977), App. Mellody, Guenther v. Hawthorn Inc. 214, 219, (1975), 27 Ill. 3d App. 533, 326 N.E.2d 537.
The plaintiff argues the verdict favor of the defendants him against finding cannot be construed as a of no He notes liability. the jury proving court instructed that he bore the burden of his The contends the can damages. plaintiff verdict be construed as a rather than as a of no damage finding liability. of no finding disagree plaintiff’s interpretation We with the the ver Mulvey, returned, and the court dict. In the same verdict was found liable, it that the not jury, having evident found defendant never damages. (Mulvey Telephone v. Illinois Bell reached the question Co. 591, 599, 53 Ill. 2d 294 N.E.2d (1973), question damages is not considered until the defendants have been properly (Schwartz v. Alton liable, found and the court so instructed the jury. Ry. & Southern Co. 38 Ill. (1976), App.
831.) While the defendants to rebut the that attempted presumption the decedent’s suffered a loss of future parents earnings, substantial suffered no at plaintiff injury defendants never claim all. performance the decedent’s of chores around the concerning evidence personal farm was unrefuted. The service the decedent is an family v. Wise (Eggimann (1964), loss pecuniary element of 385, 390, 206 N.E.2d and the was instructed to con 475), jury If the awarding damages. services in had jury sider decedent’s liable, the defendants it would have awarded at least nominal found (Lee Corp. v. National Material damages. the failure 3.) Although specifically expressed, damages return a in favor of the jury plaintiff verdict in some amount leads to the
recognized inescapable as recoverable (Ashland the defendants not liable. conclusion that found Brady Co. v. Bottling Coca Cola Ky. S.W.2d error instruc- 57, 58.) regarding damage we conclude the Finally, tion or pervasive so as to create a that prejudicial likelihood may it have the jury’s affected decision on the issue of Mul liability. Illinois vey Telephone 599-600, Bell Co. 53 Ill. 2d
On several appeal, plaintiff grounds asserts additional in favor of sustaining ruling. the trial court’s These issues were raised in motion, post-trial but trial court did not them address because felt Bullard a new required trial.
Supreme Court Rule 366(b)(2)(iv)provides: Rulings “Review Conditional Post-Trial Motion. court, if it determines to an
reviewing unconditional reverse *6 motion, trial ruling post-trial court on a may review any rulings determine conditional made on by trial court other questions raised motion. No re by cross-appeal is quired.” Ill. 2d R. (87 366(b)(2)(iv).) Subparagraph (v)provides: If
“Review a under Rule for petition Under Rule 306. leave from an a new trial is appeal allowing granted, order rulings all on the post-trial court motions are before court, the reviewing notwithstanding the absence of a final Ill. 2d R. judgment.” (87 366(b)(2)(v).) of the 1202(f) (Ill. Section Code of Civil of 1963 Rev. Procedure 2— 110, par. 1202(f))provides: Stat. ch. 2— sought “The must rule all relief in all upon post-trial court ruling sought on a of the relief Although portion motions. ruling pur- renders other relief unnecessary sought court, in poses of further the trial must proceedings court nevertheless rule on the relief conditionally sought other de- granted whether it be if termining should the unconditional rul- reversed, are ings thereafter set aside or vacated. The condi- tional become in the rulings effective event the unconditional reversed, are rulings set aside or vacated.” Constitution, VI, The Illinois article section states in part, “The appellate may original jurisdiction court exercise when neces (Ill. to the sary complete any determination case review.” VI, sec. courts of that Const. art. Illinois review have stated reasons in a new trial specified by granting trial court do appellate (McCracken limit consideration. v. scope Westinghouse 539, 541.) Brake 3d (1981), Air Co. 103 Ill. App. ruling any ground of the trial court can sustained on in urged be motion, though support the lower court in of the even the trial court basis for his v. ground (Di did state that as the decision. Maso Stores, 966, 974-75, Wieboldt Inc. 37 Ill.
466, 474; Meyer v. Povilat 4, 5.) reviewing affirming N.E.2d The cited cases involve the court’s the trial court’s action for reasons not ruled in the trial court. upon grounds upon alternative for new trial unruled as a part of the motion in the instant case had ruled previously upon by been the trial during process court the trial. The motion post-trial merely grounds asserts those alternative for the same relief and is not a for a different form of relief. request They were briefed and ar in gued this court. Because we are with dealing grounds alternative i.e., relief, trial, for the same new this court will review those alterna tive grounds. contends the trial court plaintiff instructing erred that on the
jury contributory negligence part of decedent’s par ents bars for their recovery damages pecuniary injuries. The plain tiff notes the trial court instructed the on the comparative negli gence regard rules to the alleged decedent’s lack of due care. The it is plaintiff argues incongruent the doctrine of apply contributory under section 2 of the negligence Wrongful Death Act while applying the comparative negligence standard under section 1. Ill. Rev. Stat. pars. ch.
In Alvis Ribar the su court preme abolished the common law doctrine of negli contributory gence and replaced with the doctrine of comparative negligence. Alvis, Prior to the doctrine of contributory negligence had been judi under cially imposed Wrongful section Death Act to bar re *7 covery whenever the decedent’s negligence proximate was cause of (See, death. e.g., Dezort v. Hinsdale Village (1976), 35 Ill. App. 703, Alvis, 3d 342 N.E.2d After 468.) decedent’s contributorially conduct no negligent longer was a bar. Act, section 1 of
Unlike section 2 expressly recovery bars with respect pecuniary injuries by contributorially negligent suffered Thus, beneficiaries. bar under 2 contributory negligence section In legislatively, judicially, imposed. deciding to instruct contributory negligence, the trial court relied on jury Justice Alvis-, Ryan’s dissent decision, course,
“Today’s legis- can have no effect on those lative enactments which incorporated contributory negli- have law gence, nor will the announced effect on today any have those statutes where is not a defense. contributory negligence It that this State will appears operating be under the doctrine in the contributory negligence legislature areas where the 98 acted,
has and under the doctrine of pure comparative negli gence in common law negligence cases. Alvis v. Ribar 1, 38, 886, Ill. 2d 421 N.E.2d 903.
We believe the trial court properly instructed the on the issue. A court’s only legitimate function is to declare and enforce the law as enacted by legislature, to interpret the language when nec and not essary, to enact new provisions or substitute different ones. (Belfield v. Coop (1956), 293, 307, 8 Ill. 2d 249, 134 N.E.2d 256.) Courts are not free to engraft conditions not within the purview of (Baird statute. v. Chicago, Burlington & Quincy R.R. Co. (1973), 264, App. 268, 365, 3d 296 N.E.2d 367.) Such action would plainly be a forbidden judicial amendment to the statute. Demchuk v. Duplancich (1982), 1, 9, 92 Ill. 2d 440 N.E.2d
The plaintiff raises several other arguments regarding the court’s instructions to the He jury. maintains several of the instruc tions were misleading, repetitive, and not supported'by evidence. We have reviewed the plaintiff’s contentions and find them without merit. the trial Generally, court has considerable discretion in deter the form mining in which an instruction shall given. be (Agrico Chem Corp. ical v. Forreston Fertilizer Co. (1975), 32 Ill. App. 3d An instruction is justified if it is supported by record, some evidence in the and the trial court has discretion in de ciding which issues have been raised the evidence. (Burge v. Mor ton (1981), 542.) Taken as a whole, the court’s instructions were sufficiently clear so as to mis lead the jury, they fairly accurately stated the (Kor law. palski Lyman Ill.
215.) Additionally, we find that the instructions did not unduly empha size any particular matter.
The plaintiff asserts the trial court erred in allowing the sheriff to deputy testify as the point of impact. The plaintiff con tends no foundation was laid for the witness’ expertise in accident re construction. The deputy testified that he had been a police officer for He had years. received an degree associate in law enforcement and had taken classes covering investigation of automobile accidents. His training included methods for determining points of impact. The plaintiff’s specific relates to objection deputy’s lack formal training in physics, engineering, or similar sciences. A witness whose knowledge is however, based primarily practical experience, is no less an expert than one possesses particular who scientific or aca demic knowledge. (Presswood v. Morris Ill. App. *8 844, 388 N.E.2d 847.) question The of a witness’ or knowledge
99 weight testimony, accorded his his to the degree experience goes of (1981), v. Bank Ravenswood Chicago not to his competency. City of 1115, 416 1118. 3d N.E.2d App. to the argues testimony point The the as plaintiff deputy’s therefore, Reconstruction and, inadmissible. impact unnecessary was testimony. for eyewitness not be used as a may substitute testimony 56, 619.) Ill. N.E.2d (McGrath v. 53 2d 289 Whether (1972), Rohde in addition to testi eyewitness such used expert testimony may be the rely applica it to on necessary is determined whether is mony ordinary juror. tion of of science the ken beyond principles 12, 465, If 15.) Ill. 264 N.E.2d (Plank (1970), v. Holman 46 2d inad the not ken of then is beyond average juror, matter is 76 Ill. 2d (1979), missible. v. Lou Co. Peterson Bachrodt Chevrolet 1, 3. 392 N.E.2d on App. relies Dauksch v. Chamness plaintiff Ill. Geisberger Quincy (1972), and v. cases, appellate In both court held that N.E.2d 404. to testify had law enforcement officer permitting court erred case, the officer’s as to of an accident. In each point impact accounts be eyewitness had least one of the contradicted at testimony conflicting given eyewit cause both the had plaintiff defendant ness opinion accounts. The courts in both cases decided officer’s knowledge as to be point any special based impact testimony ken of the his should have been yond average juror, confined his factual to observation. agree deputy’s opinion point
While we that the inadmissible, its consti we cannot concur that admission impact was Initially, we note tuted reversible error under the facts this case. that the at only objection deputy’s quali trial concerned the plaintiff’s an A objection grounds fications as waives all expert. specific v. 97 Ill. 2d People stated. Williams or there was Geisberger, unlike either Dauksch importantly, More testimony simply The deputy’s accident. only eyewitness one this Furthermore, him the plaintiff corroborated account. eyewitness testi impeach eyewitness testimony by trying self invited the "to tracks of the as evidence mony. only offering reason road rather well off the accident occurred truck was to that the imply (Cf. Coffey Hancock edge than at the as testified. Plogger testified as deputy Ill. Finally, opinion. plain he based to his observations which upon factual If accepted admissible. the jury tiff these were concedes observations true, these facts as then it would have necessarily concluded the acci *9 dent occurred at the edge of the road. When viewed in the context of the evidence, other including that of sole the we eyewitness, do believe the admission of testimony concerning the of point impact caused Diederich v. error. Walters prejudicial (1976), N.E.2d 1128.
The plaintiff argues the verdict is jury’s against the man ifest of the weight evidence. He concludes trial court should have judgment entered in notwithstanding his favor Although verdict. the plaintiff requested motion, this relief in his post-trial his failure to a ruling obtain could be considered a waiver of the request. (Fulford O’Connor Hanson v. Darby 767; Ill. 2d Moreover, we do not find the against verdict to be of jury’s weight the manifest the evi dence. of reversed, order the trial court granting a new trial is and
the cause is remanded with directions to reinstate the judgment previ- entered. ously
Reversed and remanded with directions.
MILLS, J., concurs. TRAPP,
JUSTICE
in
concurring
part
dissenting
part:
in
and
in
opinion
I concur
it
insofar as
reverses the order
the trial
of Bullard v. Barnes
granting
court
a new trial upon the
authority
Ill.
It again seems to insert text 2— unnecessary full of section 1202(f) the Civil Practice Law and Supreme 366(b)(2)(iv) Court Rule and (v), which have in the principal been quoted opinion. The plain text 1202(f) of section the trial imposes upon court a 2— to “rule”
duty upon all claims for relief in motion for a sought powers new trial. The appellate provided review in court Su- preme (v), Court Rule in turn 366(b)(2)(iv)and are directed to review rulings “all It trial court.” is that other than the patent Bullard granting issue, “rulings” a new trial there no upon are of the trial court. determined
This court has the order a new granting to reverse trial for to review judge proceed the reason stated trial but to by in the other for remain grounds seeking ruling a new which without to step trial court. To take the latter without remand to the trial court of the Civil complete rulings effectually provisions its dismantles both the Rules, Practice to the circuit signals Law and Court and Supreme that Court require Supreme courts this court will not them follow Law that for this practical purposes Rules the Civil Practice them. court will overlook one the issues in the trial presented
We note that this case to the man- contrary court the motion was whether the verdict was upon is if not weight generally, peculiarly, ifest of the evidence. This an issue for consideration trial court. appropriate remandment the trial accompanied by reversal should be here- for a a new trial which have not ruling upon grounds court upon. tofore been ruled *10 CORPORATION, Appellant, v. THE INDUS-
UNITED STATES STEEL Milerowski, (Jerome Appellee). et al. TRIAL COMMISSION Division) (Industrial No. 1 — 84—1660WC First Commission District 29, 1985. filed March Opinion