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Gillson v. Gulf

APRIL 12, 1968.

WILLIAM D. GILLSON, AS ADMINISTRATOR OF THE ESTATE OF BONNIE DELORES GILLSON, DECEASED, PLAINTIFF-APPELLEE,

v.

GULF, MOBILE AND OHIO RAILROAD COMPANY, A CORPORATION, DEFENDANT-APPELLANT, EDWIN S. PARKER, THOMAS BUTLER, AND VILLAGE OF HARTFORD, ILLINOIS, A MUNICIPALITY, DEFENDANTS.



Appeal from the Circuit Court of Madison County; the Hon. HAROLD R. CLARK, Judge, presiding. Judgment affirmed.

GOLDENHERSH, J.

Rehearing denied May 6, 1968.

Gulf, Mobile and Ohio Railroad Company, hereafter referred to as defendant, appeals from the judgment of the Circuit Court of Madison County entered on a jury verdict in the amount of $28,000 for the wrongful death of Bonnie Delores Gillson, 17-year-old daughter of the plaintiff administrator.

The decedent was killed in a collision between an automobile in which she was riding as a passenger, and defendant's train known as the Abraham Lincoln. The collision occurred at approximately 9:30 p.m. on January 21, 1965, at the Rand Avenue Crossing in Hartford, Illinois.

In its verdict the jury found the issues for the plaintiff and against the defendant, Gulf, Mobile and Ohio Railroad Company, and in favor of the defendants, The Village of Hartford, Edwin S. Parker and Thomas Butler, respectively engineer and fireman on the locomotive involved in the collision.

Defendant contends, as its first ground for reversal, that the court erred in permitting plaintiff's counsel in opening statement, over repeated objections, to refer to, discuss, and read from certain documents, which when offered in evidence, were held to be inadmissible. Defendant argues that plaintiff's counsel knew the documents to be inadmissible, and the references to them were made in bad faith for the purpose of presenting to the jury matters prejudicial to defendant. Defendant contends that counsel's misconduct deprived it of a fair trial, and the trial court's rulings on its objections, motion for mistrial, and post-trial motion were erroneous.

Plaintiff argues that the documents were admissible, the trial court erred in excluding them; assuming arguendo, that the trial court correctly held them to be inadmissible, defendant was not prejudiced by what occurred during the opening statement, and the trial court, in denying defendant a new trial, did not abuse its discretion.

The documents in question were excerpts of minutes of meetings of the village board of the defendant, Village of Hartford, held on September 1, 1931, February 7, 1933, and January 28, 1965, a letter dated July 13, 1937, written by the Superintendent of Streets and Alleys of the defendant, Village of Hartford, to the defendant, and a letter dated July 21, 1950, written by an employee of defendant to his superior.

Plaintiff contends that the excerpts from the minutes of the village board and the letter written by its Superintendent of Streets and Alleys are admissions of the defendant Village, and therefore, admissible. As to the letter written by defendant's employee, plaintiff argues that it constitutes an admission on the part of defendant, and further, contains admissions made by the defendant Village.

An examination of the latter document shows that it contains no admissions against interest by either defendant, and the court correctly held it to be inadmissible.

With respect to the remaining documents we need not decide whether they contain admissions of the defendant Village, for the reason that if, as contended by plaintiff, they are admissions, they are not relevant to any issue in this case.

It is plaintiff's theory that the documents contain admissions on the part of the defendant Village that the crossing is an extrahazardous one, and show that the village recognized the necessity for the installation of flashing warning lights, or providing a watchman at the crossing.

[1-3] To be admissible, admissions against interest, like other evidence, must be relevant to the issues. Maltby v. Chicago Great Western Ry. Co., 347 Ill. App. 441, 106 N.E.2d 879. Chapter 111 2/3, § 62, Ill Rev Stats, confers upon the Illinois Commerce Commission the exclusive authority to order that flashing warning lights be installed, or that a watchman be provided, at crossings, City of Altamont v. Baltimore & O.R. Co., 348 Ill. 339, 180 N.E. 809. Assuming that the defendant Village recognized and admitted the crossing to be extrahazardous, no liability can stem from its failure to instal flashing signals or provide a watchman. Resnik v. Michaels, 52 Ill. App.2d 107, 201 N.E.2d 769. Since the statements, even if admitted and not controverted, would not impose liability upon the defendant Village, they were not relevant to the issue of liability, and the trial court correctly excluded them.

We consider next defendant's argument that counsel's comments during opening statement were so prejudicial as to effectively deprive it of a fair trial. With respect to defendant's contention that plaintiff's counsel acted in bad faith, this court, in reaching its decision that the documentary evidence was properly excluded, examined the many authorities cited in the briefs and a number of cases found in its own research, and concludes that the issue is not so easily ...


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