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Christian v. New York Cent. R. Co.

NOVEMBER 2, 1960.

NELSON DAVID CHRISTIAN, A MINOR, BY ROSETTA ELMORE, HIS MOTHER AND NEXT FRIEND, PLAINTIFF-APPELLEE,

v.

NEW YORK CENTRAL RAILROAD COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison county; the Hon. JAMES O. MONROE, JR., Judge, presiding. The several judgments appealed from are reversed and the cause remanded for a new trial.

HOFFMAN, JUSTICE.

Rehearing denied November 30, 1960.

This is an appeal from a judgment for personal injuries arising out of an explosion of railroad torpedoes. The defendant, New York Central Railroad Company, sold to Luria Brothers & Company, Inc., a metal scrap dealer, a number of its obsolete steam locomotives. Luria, in turn, resold the locomotives to Granite City Steel Company, and delivery was to be made to the Steel Company at its Granite City plant. Because New York Central had no rail connection with the Steel Company's plant at Granite City, it was arranged that the Terminal Railroad Association of St. Louis would make the delivery by picking up the locomotives at designated interchange tracks. The interchange consisted of 12 or 13 parallel tracks owned by various railroads in an industrial area of the city. The area was posted with several signs stating that it was private property, dangerous and that the public should "Keep Out." Though the precise interchange tracks upon which the engines were to be spotted were owned by New York Central, it was agreed that the care, custody and control of the locomotives passed to Terminal upon their being spotted by New York Central upon the designated interchange tracks. A practice developed of delivering several locomotives to the interchange track on week-ends upon call of the Steel Company.

The plaintiff in this case is a 13 year old boy. In early May, 1956, two of his 13 year old friends, Peter Kraus and Frank Fleming by name, went into the cabs of some steam locomotives standing near the tracks of Terminal and the Wabash Railroad in the interchange and owned by either Terminal or Wabash, and found some railroad torpedoes in the cabs of these locomotives. Some of these torpedoes were exploded by the boys on the spot, others were taken home with them. About one week later these torpedoes were shown to the plaintiff, and he indicated he would like to have some. Two weeks after that, on June 2, 1956, New York Central moved four of its locomotives to the interchange, and on that day Kraus took a paper sack, rode down to the interchange and entered these engines. He made a search of the engine cabs and found some 40 torpedoes. Kraus took these home and hid them. One week later he gave the torpedoes to plaintiff. Plaintiff was then staying with his grandmother, and when he reached her home, he exploded one of the torpedoes on the sidewalk. This brought the grandmother out of the house, and she took the remaining torpedoes from plaintiff and put them in a shed in her back yard. Two days later plaintiff and another friend found the torpedoes and decided to make a rocket with them. In the process, 12 or 15 exploded while being worked on by plaintiff. As a result plaintiff lost both legs 2 inches below the hip and suffered other injuries. Although his healing has been satisfactory, he has not been able to use artificial legs successfully.

Plaintiff originally sued the Steel Company, Luria and Terminal along with the New York Central. At the close of the evidence the first three named defendants settled out for the sum of $47,500.00. The jury's verdict was against New York Central in the sum of $300,000.00. Although judgment was entered on this verdict, a later order purported to reduce it to $252,500.00. It is from these judgments that defendant New York Central appeals.

Numerous errors are assigned. It is defendant's position that the trial court should have directed a verdict for defendant because the alleged negligence was not the proximate cause of plaintiff's injuries; because of an intervening act which defendant was not legally required to foresee; and because of plaintiff's contributory negligence. In the alternative, it is defendant's position that a new trial should be ordered for one or more of the following reasons: the refusal of the trial court to grant a change of venue; improper voir dire examination of jurors by court and counsel; improper filling of the jury panel; improper instructions; failure to allow introduction of other settlements received by plaintiff; and, excessiveness of the verdict.

We have carefully examined each of the assignments of error and are satisfied that the verdict must stand or fall upon the allegation of error regarding the voir dire examination of the jurors.

The selection of the jury in this case was governed by the prescriptions contained in Supreme Court Rule 24-1, (Ill. Rev. Stat., 1959, chap. 110, par. 101.24-1).

"The judge shall initiate the voir dire examination of jurors in civil and criminal causes by identifying the parties and their respective counsel and he shall briefly outline the nature of the case. The judge shall then put to the jurors any questions which he thinks necessary, touching their qualifications to serve as jurors in the cause on trial. The parties or their attorneys shall be allowed a reasonable opportunity to supplement such examination, but shall not directly or indirectly examine jurors concerning matters of law or instructions."

This rule originated in recommendations made by a select committee of judges to the 1958 annual judicial conference composed of the trial, appellate and Supreme Court judges of this state. In their report to the conference, the judges stated the need for such a rule as follows:

"Judges, throughout the State, faced with an ever expanding volume of litigation and in some sections scandalous delays, are increasingly concerned with the disposition on the part of trial counsel to prolong inordinately the voir dire examination by: 1. indulging in tedious and repetitious examinations; 2. propounding long rhetorical questions designed to ingratiate the lawyer with the jury rather than to elicit information and; 3. tiresome statements outlining the law, the inquisitor's philosophy and ideas on various subjects, his notion concerning the thought processes to be followed by the jurors all thinly disguised as questions by the expedient of punctuating the discussion from time to time with `isn't that right?', or similar phrases more often than not without pause to allow the sometimes bewildered juror to answer. . . .

"The examination of jurors concerning questions of law supposed to be encountered in the case is without question one of the most pernicious practices indulged in by many attorneys. The usual procedure is to inquire as to whether or not jurors will follow certain instructions if given. That the supposed instructions as orally expounded by the advocate are slanted, argumentative and often so clearly erroneous as to cause certain reversal if given by the court, suprisingly appears to be a matter of little concern. . . ."

"When an attorney is allowed to give his version of the law to the jury, the other lawyer is certain to retaliate by giving his version of it. . . . In any event propounding questions of law to the jury is of no aid in arriving at the legitimate purpose of the voir dire, namely, an intelligent exercise of the right of challenge. Such questions are improper and should not be allowed."

The drafting committee appointed by the Supreme Court, which was composed of nearly the same membership as the original committee, ...


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