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Leahy v. Illinois Power Co.

OPINION FILED NOVEMBER 17, 1981.

RICHARD LEAHY, PLAINTIFF-APPELLEE,

v.

ILLINOIS POWER COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Madison County; the Hon. WILLIAM E. JOHNSON, Judge, presiding.

JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

This is an appeal pursuant to Supreme Court Rule 306 (Ill. Rev. Stat. 1979, ch. 110A, par. 306) from an order of the Circuit Court of Madison County granting plaintiff, Richard Leahy, a new trial in his action against defendant, Illinois Power Company, for personal injuries. Following a jury verdict in favor of defendant, the trial court granted plaintiff's motion for new trial on the ground that the court erred in denying plaintiff's motion for mistrial made as a result of defendant's interjecting the existence of another lawsuit for damages for injuries involving the plaintiff.

The following issues are raised on appeal: whether the cross-examination of plaintiff concerning a prior lawsuit involving the plaintiff was proper; and whether the trial court abused its discretion in granting plaintiff's motion for new trial.

Plaintiff is a member of Asbestos Workers Local No. 1 and had approximately 15 years of experience as an asbestos worker. At the time of the accident, plaintiff was employed by Sprinkman and Sons Corporation, an independent contractor specializing in insulation work, which had contracted with defendant to replace the insulation at its Alton-Wood River power plant. The accident occurred while plaintiff was working at defendant's power plant.

The area at which plaintiff worked at the power plant was referred to as the "penthouse," an enclosed area containing tubes and piping and was located on the seventh floor directly above the boiler. Because of the heat inside the penthouse, the workers would go outside on the roof to take breaks. Approximately 40 to 50 feet from the work area was a door leading to the roof. Outside the door was a metal landing with two steps with handrails on both sides leading down to the roof. The accident in question occurred on these steps.

The record reveals that for approximately one week prior to the accident the weather had been quite severe with snow and ice sufficient to cancel work for one day.

On February 7, 1975, plaintiff took a work break. He proceeded to the door leading to the roof. Plaintiff testified that upon opening the door he observed some ice on the landing and proceeded slowly down the steps. He then slipped and fell, catching himself on the handrails by his arms, producing the injuries complained of to the rib cage. Plaintiff further testified that he did not know if there was ice on the steps and that it was the first time he had ever gone out on the roof.

Plaintiff testified that as a result of this accident he received injuries to the chest and ribs. There was also testimony that he had been injured in another work-related accident in which he injured only his low back and that it was not a significant injury; however, plaintiff had given prior inconsistent statements indicating that the same parts of the back and chest were injured in both accidents. Plaintiff had filed a lawsuit as a result of the injuries sustained in the previous accident, and during a deposition in this prior lawsuit, he stated that his chest, back and arms had been sore after the accident.

On cross-examination, defense counsel attempted to impeach plaintiff by use of the deposition from the prior lawsuit to contradict plaintiff's testimony as to the insignificance of the prior injury. At this point in the cross-examination of plaintiff by defense counsel, the following exchange took place:

"Q. Now, do you remember that your deposition was taken on May 3rd. By the way, you testified that you did have a prior injury involving your low back; is that correct?

A. Yes, sir.

Q. And that was over with in a few days, is that correct?

A. Well, I had what they call adjustment by chiropractor with the back; but I didn't lose ...


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