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Hazelwood v. Illinois Central Gulf R.r.

OPINION FILED MAY 4, 1983.

GERALD HAZELWOOD, PLAINTIFF-APPELLEE,

v.

ILLINOIS CENTRAL GULF RAILROAD, DEFENDANT-APPELLANT. — (HUDSON TOWNSHIP, DEFENDANT.)



Appeal from the Circuit Court of McLean County; the Hon. Luther H. Dearborn, Judge, presiding.

JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Railroad crossing — motorcycle accident — wilful and wanton allegation.

Jury verdict for plaintiff.

$30,000 compensatory, $170,000 punitive.

We affirm.

THE FACTS

On a warm spring evening, Gerald Hazelwood was returning, on his motorcycle, from an outing in the Lake Bloomington area. Accompanied by a friend on another motorcycle, Hazelwood was traveling toward Bloomington on Comlara Park Road. It was dark and the weather was clear. Both riders were using their headlights. Riding ahead of his friend, Hazelwood suddenly saw a set of cross-bucks marking a railroad crossing. Quickly he glanced both ways for a train and then looked ahead and saw a deep depression in the road at the crossing. He barely had time to touch his brakes before he hit the depression and flew into the air. When he landed, he suffered severe facial injuries.

Hazelwood brought suit against the Illinois Central Gulf Railroad and Hudson Township, where the crossing is located. He alleged that the railroad had negligently and wilfully and wantonly failed to maintain the crossing in a safe condition. At trial, he produced evidence to establish that the grade crossing where he was injured was located on a heavily traveled road; that the crossing was in an unsafe condition; and that the crossing had been in that condition for several years. Hazelwood also introduced evidence to show that the railroad knew of the condition of the crossing.

After hearing the evidence, the jury awarded Hazelwood $30,000 in compensatory damages and $170,000 in punitive damages against the railroad. The jury did not award any damages against Hudson Township. The trial court entered judgment on the jury's verdict and the railroad appeals.

THE EXPERT TESTIMONY

First, the railroad argues that it was error for the trial court to admit a drawing of the crossing made by Hazelwood's engineering expert. The railroad maintains that the admission of the drawing was cumulative and prejudicial because there were already pictures in evidence that clearly depicted the crossing.

• 1 The admissibility of evidence, such as photographs and drawings, is within the discretion of the trial court. The court's exercise of that discretion will not be overturned unless there has been a clear abuse of that discretion. (Levenson v. Lake-to-Lake Dairy Cooperative (1979), 76 Ill. App.3d 526, 394 N.E.2d 1359.) Also, and more specifically, the introduction of cumulative evidence is largely a matter within the discretion of the trial court. (Ross v. Pfeifer (1976), 39 Ill. App.3d 789, 350 N.E.2d 797.) There is nothing in the record which indicates to us that the trial court abused its discretion by admitting the drawing into evidence.

Furthermore, even if the trial court had erred by admitting the drawing, the railroad waived that error by failing to make the specific objections it now raises when the drawing was offered into evidence (DeMarco v. McGill (1948), 402 Ill. 46, 83 N.E.2d 313) and by failing to include those objections in its post-trial motion. Graves v. North Shore Gas Co. (1981), 98 Ill. App.3d 964, 424 N.E.2d 1279.

• 2 Next, the railroad argues that it was error for the trial court to allow Hazelwood's engineering expert to testify about the condition of the railroad ties and spikes in an area 100 feet on either side of the crossing. The expert testified that the poor condition of the rails on both sides of the crossing had a direct effect on the poor condition of the crossing itself. Because the condition of the rails on either side of the crossing was a relevant fact, it was properly admitted to support the expert's opinion that the crossing was hazardous. Marut v. Costello (1966), 34 Ill.2d 125, 214 N.E.2d 768.

• 3 The railroad also argues that it was error to allow the engineering expert to testify on redirect as to whether the crossing met Illinois Commerce Commission (ICC) standards. The railroad itself raised the issue of compliance with the ICC standards. During its cross-examination of the expert, the railroad asked specifically whether the expert had investigated the crossing in order to determine whether it violated the applicable ICC regulations. The railroad cannot complain on appeal about the expert's testimony when the railroad itself began that line of questioning during its cross-examination of the expert. Johnson v. Ward (1972), 6 Ill. App.3d 1015, 286 N.E.2d 637; Smith v. Illinois Valley Ice Cream Co. (1959), 20 Ill. App.2d 312, 156 N.E.2d 361.

• 4 At the trial, Hazelwood's doctor testified as to the extent of Hazelwood's injuries. The railroad contends that the doctor should not have been allowed to base his opinion on records which he did not prepare. Our supreme court in Wilson v. Clark (1981), 84 Ill.2d 186, 417 N.E.2d 1322, answered this issue ...


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