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Burnett v. Caho

JULY 12, 1972.

LARRY A. BURNETT, PLAINTIFF-APPELLANT,

v.

HARVEY CAHO ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Peoria County; the Hon. C.M. WILSON, Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 7, 1972.

The plaintiff, Larry Burnett, was employed to build fence on a farm jointly owned and managed by the defendant Harvey Caho. The plaintiff lost his right eye while cutting a roll of steel woven wire. He contends the injury resulted from the failure of Charles Caho, the 17-year-old son of Harvey, to pay attention and hold the wire in position. After a jury trial there was a verdict in favor of plaintiff and against the employer Harvey Caho, in the amount of $50,000.00. A verdict of not guilty was returned in favor of the son Charles.

After a hearing on post-trial motions the trial judge set aside both verdicts and granted new trials, giving no reasons for his action.

Plaintiff filed a petition for leave to appeal from the order granting the new trial. Defendant Charles Caho filed a cross petition for leave to appeal. This court allowed both petitions.

• 1 To properly aid this court to determine the merits of an appeal from an order granting a new trial, particularly when there are two opposite verdicts, one of guilty and one of not guilty, the trial judge should state his reasons for his action. Lukich v. Angeli, 31 Ill. App.2d 20.

By Count I of his complaint plaintiff alleged that Harvey Caho and wife owned a farm in Knox County; that Harvey managed and operated the farm, and on July 23, 1969, Harvey employed workers to build a new woven wire fence on the east side of a road which went north and south through the farm; that plaintiff was one of the workers and was to be paid $2.00 an hour. On the same day defendant employed his son Charles, aged 17 and another younger boy. That the building and erection of the fence required the use of sharp-edged cutting tools, small machinery and was hazardous, requiring competent, experienced, mature workmen. That plaintiff and Charles Caho attached one end of a roll of steel woven wire to a corner post, unrolled the wire along the east side of the road to a place where a gate was intended, that plaintiff kneeled to cut the wire while Charles positioned the wire on the ground. That Charles relaxed his restraining hold, or otherwise moved to a position of simply observing plaintiff and that as plaintiff rose and completed the cutting, one of the freshly-cut wire points struck plaintiff in the right eye, destroying the sight. That plaintiff was in the exercise of ordinary care and Harvey Caho was guilty of one or more negligent acts as follows:

a. Negligently employed Charles Caho and Roy Lightbody in the fence building project when he knew, or should have known, they were immature and inexperienced respecting the hazards and dangers of the project and risk of harm to plaintiff.

b. Negligently failed to warn plaintiff of the hazard and danger incident to the cutting of the fence roll.

c. Failed to warn Charles Caho of the hazards and danger incident to the cutting of the fence roll.

d. Failed to furnish Larry Burnett with safe working conditions.

Count II was also against Harvey Caho and contained the same allegations as Count I with a further allegation that Charles Caho was the employee, agent, representative, and vice-principal of Harvey and was acting in the scope of his employment.

Count III was directed against Charles Caho alone. Harvey Caho moved to dismiss Counts I and II and was overruled. He then filed a general denial type of answer to Count I and the same to Count II except that he admitted that Charles was his employee but denied that Charles was his agent, representative and vice-principal.

Testimony showed that the three boys were engaged in building a new woven wire fence along the road as charged, that it was necessary to unroll the tightly coiled steel wire, locate and dig post holes, and then cut twelve strands of wire to install a gate. None of the boys had previous experience and the employer had not given any of them any particular instructions or warnings. There was no one in charge. The uncoiled fence was stretched out with the end held down by a pipe. Plaintiff threw off the pipe while Charles Caho stood on the fence to hold it down, then moved away a little to enable plaintiff to raise the fence and cut the strands with heavy bolt cutters. Charles admitted he didn't keep his eyes on what plaintiff was doing and, as the last strand was cut, Charles moved off the fence allowing it to snap up and penetrate plaintiff's right eye.

Plaintiff maintains that the trial court's ruling granting a new trial was based either on an erroneous determination of law or constituted an abuse of discretion in usurping the function of the jury.

• 2 We have examined the evidence in this case and find that it presents a jury question upon which reasonable men might differ. As was said in Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74, at page 83:

"Certain facts may exist, which a jury of reasonable men would consider as determinative in leading to a conclusion of liability or non-liability, all according to the circumstances of the case."

Also, in the Ney case, at page 84, the court said:

"Questions of negligence, due care and proximate cause are ordinarily questions of fact for a jury to decide. * * * Questions which are composed of such qualities sufficient to cause reasonable men to arrive at different results should never be determined as matters of law. The debatable quality of issues such as negligence and proximate cause, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness and necessity of leaving such questions to a fact-finding body. The jury is the tribunal under our legal system to decide that type of issue. To withdraw such questions from the jury is to usurp its function."

We must next consider alleged errors of law raised by the post-trial motion of Harvey Caho who contends that the Court erred in admitting over objection:

(1) Photographs of the scene taken in January of 1970.

• 3 Remoteness of time of taking the photograph from the time of the transaction, or changed conditions at the time of taking, do not necessarily render the photograph inadmissible if it can be shown by testimony that after the changes are explained, the jury will be able to understand it clearly as a correct representation and not be misled by it. Gard, Illinois Evidence Manual, Rule 336.

(2) In permitting the plaintiff to remove his artificial eye while on the witness stand and to testify with the eye removed while photographs of the scene were being marked and identified as being an appeal to the passions and prejudice of the jury.

• 4 The possibility of causing undue prejudice is inherent in this type of evidence. But just because the demonstration is gruesome or stirring to the sensibilities and apt to produce prejudice in the minds of the jury is no reason to exclude it. The determination of the relative importance of the evidence is a matter for the sound discretion of the judge. 66 ALR2d 1334. Cleary, Handbook of Illinois Evidence, Sec. 13.9.

• 5, 6 It is common practice to display personal injuries to the jury even though there is no controversy as to the existence, nature and extent thereof. (Minnis v. Friend, 360 Ill. 336.) This has been held to include the right to show an injured eyeball that has been removed. (Seltzer v. Saxton, 71 Ill. App. 229; Stegall v. Carlson, 6 Ill. App.2d 388, 391.) The trial court did not commit error when it permitted the plaintiff to display his injuries to the jury and to testify briefly while so doing.

• 7 (3) In permitting the employment Supervisor at Caterpillar's East Peoria plant to testify as to what the company would do regarding an application for employment by one-eyed persons and also regarding the company's handling of physically disabled employees.

We have examined the transcript of the testimony and can find no objection to or motion to strike this testimony so it is properly in the case.

(4) In permitting a witness to testify in rebuttal regarding a statement made by the plaintiff shortly after the accident, "If the boys had stood on the wire it wouldn't have flew up and hit me in the face."

• 8, 9 We are of the opinion that the testimony was admissible under the excited utterance exception to the hearsay rule. The elements of this exception, which was formerly called the res gestae exception were defined in People v. Poland, 22 Ill.2d 175, 174 N.E.2d 804: "Three factors are necessary to bring a statement within this exception to the hearsay rule: (1) an occurrence sufficiently startling to produce a spontaneous and unreflective statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence."

• 10 If a narrative is actually part of the res gestae, it is admissible. (Dunn v. Dunn, 241 Ill. App. 11, 20.) The statement was made almost immediately after the accident, in ruling the trial court said, ...


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