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Danielson v. Elgin Salvage And Supply Co.

MARCH 22, 1972.

MERLIN P. DANIELSON, PLAINTIFF-APPELLANT,

v.

ELGIN SALVAGE AND SUPPLY CO., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of McHenry County; the Hon. CHARLES S. PARKER, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

The plaintiff was employed at the Terra Cotta Truck Service Company in Crystal Lake, Illinois on April 22, 1967. On that date Moses Johnson, an employee of Elgin Salvage and Supply Company, was sent to pick up the truck which was being repaired by Terra Cotta. No repairs were being made to the crane portion of the truck. When Johnson arrived he was asked by a Mr. Hulick to load some scrap metal for Terra Cotta. After being advised over the phone that it was all right with his employer, Johnson drove his crane to the scrap metal pile. Johnson directed the plaintiff to back his truck up to the scrap metal pile, which the plaintiff did. Danielson got out of his truck and walked back to the scrap metal. Johnson began operating the crane by raising it and moving it to the north when the boom on the crane fell striking Danielson on the head and shoulders. Danielson brought suit against both Elgin Salvage and Moses Johnson. A jury trial resulted in a verdict in favor of both defendants. From the entry of judgment on the verdict, plaintiff appeals to this court.

Plaintiff first contends that the trial court erred in allowing defendant Johnson to testify as to "what might have occurred" and that the trial judge made certain rulings which were prejudicial and might have influenced the jury.

• 1 We need not consider these contentions as neither of them were specified in plaintiff's post trial motion. While it is true, as plaintiff's counsel points out, that a post trial motion need not specify errors in detail, the motion must nonetheless indicate the grounds upon which the litigant relies with sufficient particularly to afford the trial judge identity of the error relied upon. Osborne v. Leonard (1968), 99 Ill. App.2d 391, 240 N.E.2d 769 cited by plaintiff is not authority for a complete omission of the alleged errors in the post trial motion. See also Krug v. Armour and Co. (1940), 335 Ill. App. 222, 80 N.E.2d 386 and Pajak v. Mamsch (1949), 338 Ill. 337, 87 N.E. 147.

The defendant called one Richard Beinlich as an expert witness. Beinlich was a 35 year old mechanic, had been a mechanic since he was 16 years of age, and had operated a crane repair shop for about two years prior to the accident here in question. As a crane mechanic he maintains approximately one-third of all the cranes being used in the City of Chicago for scrap yards. He was familiar with the crane here in question, had worked on it a week or so before the accident, and had checked it a few days after the accident. Over objection of the plaintiff he testified in answer to the following question: "In your opinion the boom fell because it had a defective part? Yes, the cotter key." He also testified in his opinion that the pin was out of position on the date of the accident because of "a bad cotter — a soft cotter key. You run into these every so often. Some are not as hard as the rest." Upon cross examination the following was asked by plaintiff's counsel, "In your opinion the boom fell because it had a defective part?" Beinlich answered "Yes, the cotter key." He further testified that the cotter pin was held in place by two cotter keys, one at each end of the pin and that when he examined the same a few days after the accident he found that the pin was held in place by a piece of wire, which he replaced with a cotter key.

• 2 Plaintiff contends first that Beinlich was not an expert. It is to be noted that examination of an expert witness may be based upon personal knowledge or upon a hypothetical question. Sherman v. City of Springfield (1966), 77 Ill. App.2d 195, 222 N.E.2d 62 at 67:

"It appears, therefore, that Illinois has followed the rule enunciated in Wigmore, and the trial court erred in not permitting the witness to testify as to his opinion based upon his personal observation."

In the instant case Beinlich testified from personal knowledge and examination of the crane in question. The first case cited by plaintiff is Gibson v. Healy Brothers and Company (1969), 109 Ill. App.2d 342, 248 N.E.2d 77. In that case an expert witness was asked a hypothetical question not based on evidence adduced in the trial. The court held that such procedure was not desirable but it was not reversible error. In Schwartz v. Peoples Gas Light and Coke Company (1962), 35 Ill. App.2d 25, 181 N.E.2d 826 cited by plaintiff, again a hypothetical question was asked of an expert witness relative to the operation of a gas range. The expert was asked his opinion based upon a hypothetical question relative to vapors resulting from the use of the gas range at a high degree of heat. The court stated that from the cross examination of the expert it was apparent that his answer to the hypothetical question of causation was based on conjecture. In Marshall v. First American National Bank of Nashville (1968), 233 N.E.2d 430, cited by plaintiff, two expert witnesses testified relative to the causation of an airplane crash and the court in discussing the testimony of expert witnesses stated in quoting Schwartz, supra:

"The normal function of a witness is to state facts within his personal knowledge. * * * To this general rule there is an important exception making admissible the opinion of an expert. He is considered qualified to provide the often necessary function of drawing inferences from facts which the jurors would not be competent to draw. As a safeguard upon the reliability of such testimony, however, the expert witness, no matter how skilled or experienced, will not be permitted to guess or state a judgment based on mere conjecture." Id. at 31-32, 181 N.E.2d at 829.

The court then found that the testimony of the two witnesses therein was based upon "mere conjectures." Examination of these cases does not indicate that they are applicable to the factual situation before us.

• 3, 4 Plaintiff further contends that if Beinlich were an expert, then it was error to allow him to testify as to his opinion as to the cause of the accident as his testimony was not based on facts in evidence; that his testimony was based on conjecture, probability, or speculation, and that the jury should not have been allowed to render a verdict based on his testimony. Beinlich was not only presented as an expert witness but he was a witness who was apparently charged with maintaining the crane in question. He was not asked a hypothetical question but was asked what he found when he examined the mechanism which resulted in the malfunction thereof. Johnson, the operator, testified that the boom dropped; that by pumping it he was able to stop it about five feet above the ground after it had struck plaintiff; that he took off the plate, found that the cotter key had come out, replaced it with a wire, and finished the job of loading the scrap metal. Beinlich then testified that when he examined the crane a few days later he found that the cotter key had been replaced with a wire. There is no question but that the boom fell; the operator testified that the reason it fell was that the cotter key came out which released the pin holding the mechanism and that he repaired or replaced the key with a wire. It obviously worked after he repaired it. Beinlich in examining the mechanism found the wire and so testified. The court in Krueger v. Friel (1947), 330 Ill. App. 557, 71 N.E.2d 815 at 820 stated:

"* * * When an expert witness has personal knowledge or has personal observation and his opinion is sought, a hypothetical presentation is unnecessary, but he may be examined as an expert upon direct interrogation."

• 5, 6 In Bollmeier v. Ford Motor Company (1970), 265 N.E.2d 212 the Supreme Court in citing Mahlstedt v. Ideal Lighting Company (1915), 271 Ill. 154 at 177, 110 N.E. 795 at 802, said:

"Expert evidence is edmissible when the witnesses offered as experts have peculiar knowledge or experince not common to the world, which renders their opinions founded on such knowledge or experience an aid to the court or jury in determining the question at issue. Expert testimony is proper when the subject-matter of the injury is of such a character that only persons of skill ...


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