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Mathis v. Burlington Northern

OPINION FILED DECEMBER 29, 1978.

ROBERT D. MATHIS, JR., PLAINTIFF-APPELLANT,

v.

BURLINGTON NORTHERN, INC., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of St. Clair County; the Hon. RICHARD T. CARTER, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

A jury in the circuit court of St. Clair County awarded a general verdict to the plaintiff, Mathis, in the amount of $183,000 and answered a special interrogatory finding the plaintiff guilty of contributory negligence. The trial court entered judgment for the defendant, Burlington Northern, Inc., and it is from that judgment that the plaintiff appeals.

The plaintiff was involved in a collision with the defendant's train on August 29, 1973. The plaintiff was traveling eastbound on Belknap Road and struck the defendant's southbound train at the intersection of Belknap Road and the north/south Burlington Northern tracks. Trees 25 to 30 feet tall lined the railroad track on either side of the crossing. Approximately 150 feet west of the crossing, the plaintiff saw the train and applied his brakes, leaving skid marks of 92 to 110 feet until the collision occurred. His vehicle struck the train approximately 10 to 12 feet from the front of the engine.

The plaintiff sustained multiple fractures and a cerebral contusion. Various surgery was needed and testimony was illicited that further surgery may be necessary and that the plaintiff would suffer permanent physical and mental injuries as a result of the collision.

The plaintiff alleges three grounds for reversal. He first argues that the court below erred in allowing the special interrogatory answered by the jury to overrule the general verdict rendered by the jury. His contention is that the defense of contributory negligence is not available to a defendant who is sued for injuries resulting from an act or an omission of a duty required by the Public Utilities Act, or an order, rule or regulation promulgated thereunder. We decline to decide this issue for the reason that the plaintiff has failed to preserve that issue for review.

There is no dispute that the plaintiff did not object, at the trial nor at the instructions conference, to the tendering of the special interrogatory on the question of contributory negligence. He here urges that no objection was made because the special interrogatory was proper as it related to the plaintiff's first cause of action, which was based on simple negligence. However, the record is clear that no limiting instruction was requested by the plaintiff.

• 1 The failure to specifically object to an instruction to be given by the court to the jury, and to renew that objection in a post-trial motion constitutes a waiver of the right to appeal on the ground of erroneous instruction. (Boone v. Baker (1972), 9 Ill. App.3d 508, 292 N.E.2d 461.) This mode of preserving error applies also to special interrogatories. Havlovic v. Scilingo (1972), 7 Ill. App.3d 918, 289 N.E.2d 79.

The plaintiff alleges that in his post-trial motion, he indicated the error involved with the special interrogatory and thus, preserved his right to raise the issue on appeal. The pertinent portion of the post-trial motion is, as follows:

"* * * that the court erred in entering judgment on the jury's answer to the Special Interrogatory, such answer being contrary to the manifest weight of the evidence and not being controlling upon the issues herein."

The purpose of an objection made at trial, the instructions conference, or at a post-trial motion, is to apprise the trial judge of the specific ground of error alleged. Such objection must be made "with sufficient particularity to afford the trial court identity of the error relied upon." Osborne v. Leonard (1968), 99 Ill. App.2d 391, 240 N.E.2d 769.

The failure to specifically set forth the error alleged in a special instruction with sufficient clarity to identify such issue to the trial court constitutes a waiver of objections to said special instructions. Baldwin v. Huffman Towing Co. (1977), 51 Ill. App.3d 861, 366 N.E.2d 980.

• 2 It has previously been held that the statement that instructions "fail to state the law" is insufficient to adequately specify the error to the trial judge, and the objection to said instruction is deemed waived. People v. Turner (1976), 35 Ill. App.3d 550, 342 N.E.2d 158.

• 3 Although the plaintiff urges that no objection was made because the special instruction was applicable to his first cause of action, no request or attempt to limit the applicability of that special instruction was tendered by the plaintiff. There was no request for limitation, and no objection was made at either the trial court or the instructions conference. Given these facts, the general allegation in the post-trial motion was far from sufficient to apprise the trial judge that the plaintiff felt that the interrogatory regarding contributory negligence did not apply to a cause of action based on a violation of an order of the Commerce Commission made pursuant to the Public Utilities Act. There was no reasonable way that the trial judge should have known the nature of the objection the plaintiff is making, and therefore, we do not decide that point.

We reiterate that we are not making any judgments on the merits of the plaintiff's argument that contributory negligence is not a defense to an action based on a violation of the Public Utilties Act or order thereunder. See Barthel v. Illinois Central Gulf R.R. Co. (1977), 55 Ill. ...


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