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Gillson v. G.m. & O.r.r. Co.

OPINION FILED MARCH 27, 1969.

WILLIAM D. GILLSON, ADMR., APPELLEE,

v.

THE GULF, MOBILE AND OHIO RAILROAD CO., APPELLANT.



APPEAL from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County; the Hon. HAROLD R. CLARK, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Plaintiff, William Gillson, as administrator of the estate of Bonnie Gillson who was killed in an auto-train collision, brought a wrongful death action against the Gulf, Mobile and Ohio Railroad Company, the engineer Edwin S. Parker, the fireman Thomas Butler, and the village of Hartford in the circuit court of Madison County. A jury returned a verdict against the railroad (hereinafter, defendant) in the amount of $28,000 and found the issues in favor of the other three defendants. The defendant appealed to the Fifth District Appellate Court which affirmed. (94 Ill. App.2d 170.) We granted leave to appeal.

The accident involving the automobile, in which decedent was riding as a passenger, and the defendant's train occurred at approximately 9:30 P.M. on January 21, 1965, at the Rand Avenue crossing in Hartford, Illinois.

Although there were other contentions urged before the appellate court, defendant appeals here on the sole ground, all others being waived in oral argument, that the court erred in permitting plaintiff's counsel in opening statement, over repeated objections, to refer to, discuss, and read from 5 documents, 4 of which when offered into evidence were held to be inadmissible, and the offer of the 5th withdrawn. Defendant argues that plaintiff's counsel knew the documents to be inadmissible, and that his references to them were made in had faith and for the purpose of improperly acquainting the jury with matters prejudicial to defendant. Plaintiff contends the documents were admissible, and the trial court erred in excluding them, and that, in any event, plaintiff was not prejudiced by their admission or the opening statements complained of.

The portions of the opening statement relevant to our opinion read as follows:

"MR. ALMETER: On July 13, 1937, I think the evidence will show, Mr. Otto Schlieper, who was then Superintendent of the Street and Alley Committee of Hartford, wrote a letter to the Gulf, Mobile & Ohio and advised that in his opinion, that is in his official opinion as the Streets and City's Commissioner of Hartford, that in his opinion this crossing was hazardous and needed warning lights.

I anticipate the evidence to show on July 3, 1950, the Chief Engineer of the Illinois Commerce Commission addressed correspondence to the New York Central, to the GM&O, and to the Village of Hartford saying they had received complaints that this crossing was dangerous ____

MR. HOEFERT: I make one more objection and ask that it be considered by the Court as a continuing objection to this line of argument.

THE COURT: Overruled. And the continuing objection to counsel's argument will be shown for the record.

MR. ALMETER: I expect the evidence to show that on July 21, 1950, after the Illinois Commerce Commission wrote them, I expect the evidence to show that there was a meeting between the New York Central, the Gulf, Mobile & Ohio people, someone from the Illinois Commerce Commission, and from the Village of Hartford, In that meeting, it was agreed that warning signals should be put up. And it was suggested to the Mayor, who was the representative of the Village of Hartford, that the Mayor go to the Council and put, and that Hartford put up warning signals. And that the railroads would thereafter maintain them. Nothing was done.

I anticipate the evidence will show that on January 28, 1965, that is three days, four days — Well, six days after the accident, or seven, but the Village Council of Hartford passed a resolution, an official act of the Village in Council on which, I believe the evidence will show, there was unanimous ____

MR. COPPINGER: I object to this as being subsequent to the incident in question.

MR. ALMETER: I haven't finished yet, ...


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