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Huff v. Illinois Central R.r. Co.

FEBRUARY 25, 1972.

SUANE HUFF, A MINOR, BY LEONTINE HUFF, HIS MOTHER AND NEXT FRIEND, PLAINTIFFS-APPELLANTS,

v.

ILLINOIS CENTRAL RAILROAD COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Jackson County; the Hon. PEYTON H. KUNCE, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

The plaintiff is Suane Huff "a minor child, by Leontine Huff, his mother and next friend." His suit is against the Illinois Central Railroad for negligence in operation of a train which cut off the plaintiff's leg. At the time of the occurrence the plaintiff was 18 years of age and a freshman at Southern Illinois University.

The accident occurred on April 17, 1965, as the plaintiff was driving a motor vehicle called a motorbike upon and across tracks of the defendant railroad company. Plaintiff had been attending an annual fraternity social outing at the University and, according to his testimony, from 8:00 P.M. until 2:30 A.M. had two or three cans of beer. He left for another party having borrowed a Honda 50 Motorbike from a friend. John Fant, a sophomore student at the University, accompanied him as a passenger. The route followed by Huff took him across the Illinois Central tracks on College Street. He was struck and injured by an Illinois Central train, the Chicksaw No. 15 out of St. Louis. The testimony of the plaintiff and his passenger, who jumped off the passenger seat shortly before the collision, differed in some respects from the evidence of the train crewmen, a student who worked as a part-time switch-tender, and a taxicab driver. The latter stated that he heard the horn or train whistle and the bell and observed the gates guarding the crossing to come down and testified that the plaintiff drove around the gates onto the track area immediately in front of the approaching train. The jury returned a verdict in favor of the railroad company and answered a special interrogatory finding the plaintiff "guilty of negligence which proximately contributed to cause the accident in question, as charged in the plaintiff's complaint."

The entire body of the Post Trial Motion is as follows:

"Now comes plaintiff, by his attorney, and moves that the court set aside the verdict returned by the jury in the above-entitled action, and the judgment entered thereon, and grant him a new trial of said cause; and, in support hereof, plaintiff specifies the following grounds:

1. The verdict was contrary to the law and the evidence.

2. The verdict was contrary to the manifest weight of the evidence.

3. The verdict was not supported by any evidence in the record.

4. The verdict resulted from sympathy, bias, prejudice and compromise on the part of the jury.

5. Defendant's attorneys made highly improper and prejudicial arguments to the jury.

6. The court erred in admitting improper and prejudicial evidence offered by defendant over the objections of plaintiff.

7. The court erred in refusing instructions numbered 3 and 5 tendered by plaintiff.

8. The court erred in giving each and every instruction tendered by defendant, objected to by the ...


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