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Turner v. Commonwealth Edison Co.

OPINION FILED AUGUST 25, 1978.

GEORGE A. TURNER, PLAINTIFF-APPELLEE,

v.

COMMONWEALTH EDISON COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Madison County; the Hon. HORACE L. CALVO, Judge, presiding.

MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

This is an appeal by defendant, Commonwealth Edison Company (Edison), from a judgment in the amount of $465,200 entered in the circuit court of Madison County in favor of plaintiff, George A. Turner, following a jury trial. This is the second appeal had in this cause. See Turner v. Commonwealth Edison Co., 35 Ill. App.3d 331, 341 N.E.2d 488.

The instant case arose from an incident occurring on Edison's premises during the construction of a power generating plant in Pekin. Turner was a pipe fitter and welder employed by Morrison Construction Company, Edison's piping contractor. On the morning of the occurrence, January 22, 1971, Turner and his co-workers were to unload certain steampipes from a railroad car. To accomplish this task it was first necessary to lay down on the ground wooden railroad ties as cribbing upon which the steampipes could rest. A 12 1/2-ton mobile crane, called a "cherry picker," was thus sent to obtain the ties while Turner remained at the laydown area. Turner testified that he was straightening out some cables and as he stood up, he felt a "thud" against his head knocking him leftward onto the ground. He stated that while on the ground, he looked up and saw a number of railroad ties, hanging from the cherry picker's boom, swinging over him. However, he did not know what hit him and he stated that he had heard no warning before being hit.

Robert Tarver and Wilfred DeWalt, eyewitnesses to the occurrence, testified on Turner's behalf that the load of ties was hanging in front of the cherry picker from its extended boom, and that the load was swinging as the cherry picker drove over the rough terrain. As the cherry picker approached Turner, they saw the load strike him about the head or upper body area.

On Edison's behalf, Charles Ellerd, also an eyewitness, testified that when the load was three or four feet from Turner, he "softly" spoke to Turner, to avoid frightening him, to warn him of the load. He stated that the load did not strike Turner, but that Turner slipped and fell as he was startled by the load. Tom Schlosser, the operator of the cherry picker, testified on Edison's behalf that the load could not have struck Turner because it was 10 feet away from Turner at the time Turner fell.

Evidence was further presented by Turner showing that as a result of the occurrence he suffered ruptured spinal discs in his neck and in his lower back, the latter which required surgical removal.

Originally, Turner filed a two-count complaint against Edison. Count I sought damages for the personal injuries based on an alleged violation of the Illinois Structural Work Act (Ill. Rev. Stat. 1971, ch. 48, par. 60 et seq.). Count II sought punitive damages for Edison's allegedly wilful and wanton misconduct. During the first trial in this cause, a verdict was directed in favor of Edison on count II, and thereafter, on count I, the jury returned a verdict in favor of Turner in the amount of $30,000. The trial court then entered judgment on the verdict. Both Turner and Edison filed post-trial motions. Turner moved for a new trial on damages only, or alternatively, on all issues including punitive damages. Edison moved for a judgment notwithstanding the verdict. The trial court entered an order denying Edison's post-trial motion and granting Turner's motion for a new trial on all the issues including count II. From this order Edison was granted leave to appeal to this court pursuant to Supreme Court Rule 306 (Ill. Rev. Stat. 1975, ch. 110A, par. 306). (See Turner v. Commonwealth Edison Co.) Edison presented three issues for review:

"* * * (1) the propriety of the trial court's denial of defendant's post-trial motion for judgment n.o.v.; (2) the propriety of the trial court's allowance of a new trial on count I, based on the Structural Work Act; and (3) the propriety of the trial court's allowance of a new trial on count II, punitive damages." (35 Ill. App.3d 331, 333, 341 N.E.2d 488, 490.)

Upon consideration of the record in the first trial, and the law applicable thereto, this court affirmed the lower court's denial of Edison's motion for a judgment n.o.v., affirmed the court's order granting a new trial on count I, and reversed the court's order granting a new trial on count II.

Pursuant to this court's mandate, on remand a new trial was had only on count I, from which trial this appeal follows.

In this appeal, Edison presents the following issues for review: (1) whether venue was improper; (2) whether the court erred in denying its motion, following the second trial, for a judgment n.o.v.; and (3) whether a new trial is warranted due to numerous trial errors allegedly committed during the second trial.

The incident herein occurred in Tazewell County. In response to Turner's original complaint filed in the circuit court of Madison County, Edison timely filed a motion to transfer to a county of proper venue (Ill. Rev. Stat. 1971, ch. 110, par. 8(2)), arguing that it had no physical assets or registered agent in Madison County nor that it was doing any business therein. Turner presented evidence that Edison owned railroad cars with which it hauled coal through Madison County and that by virtue of certain interconnection agreements with Central Illinois Power Service, Union Electric Company and Illinois Power Company, Edison provided power to consumers in Madison County by what is known as a grid system. In turn, Edison presented evidence that there was no pickup or delivery by any of its trains in Madison County and that under the interconnection agreements Edison did not regularly supply power for distribution in Madison County but only upon request, on an emergency basis, when excess electrical energy was available to Edison. The trial court denied Edison's motion to transfer.

At the conclusion of the first trial the subject of venue was not again raised by Edison in its post-trial motion, nor was it raised in or considered by this court in the prior appeal. However, following remandment, at a pretrial conference before the second trial, counsel for Turner, Phillip Kardis, requested leave by the trial court to file certain documents pertaining to venue in order to "complete the record." These documents consisted of the aforementioned interconnection agreements as well as an evidentiary deposition from another lawsuit and other documents all of which concern the agreements. Kardis explained to the court that he wished to have all matters relating to the interconnection agreements in the record. After some discussion, counsel for Edison, Robert Wilson, stated that he had no objection thereto because he believed that the documents would not affect the previously entered ruling denying his motion to transfer. The trial judge stated that while he had no intention of reconsidering the venue question at that time, he believed that some of the documents might have been presented when the question was originally passed upon. Wilson, however, pointed out that none of the documents presented had been filed at the time of the original ruling. Kardis then explained that, in any event, his purpose in filing the documents was that if there were to be another appeal, he wanted "to take advantage of them on appeal." The trial judge then stated that he was willing to allow the documents to be filed, but that "I have not been asked by either counsel * * * to reconsider the trial [court's] original order, finding venue in this county * * *." In response to the latter remark, Wilson stated it was his understanding that since he had timely raised the question of venue before the first trial, it was preserved. Further he stated that:

"* * * I will raise it on appeal, and in fact, when we argued this in Mount Vernon [during the first appeal], all three of the judges up there asked me, well, Mr. Wilson, there doesn't appear to be proper venue in this case, and I said, well, that is ...


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