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Henderson v. Ill. Central Gulf R.r. Co.

OPINION FILED MAY 19, 1983.

HEATHER HENDERSON, A MINOR, BY JILL HUDSPETH, HER MOTHER AND NEXT FRIEND, ET AL., PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES,

v.

ILLINOIS CENTRAL GULF RAILROAD COMPANY, DEFENDANT-APPELLEE AND CROSS-APPELLANT. — HEATHER HENDERSON, A MINOR, BY JILL HUDSPETH, HER MOTHER AND NEXT FRIEND, ET AL., PLAINTIFFS-APPELLEES,

v.

ILLINOIS CENTRAL GULF RAILROAD COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Logan County; the Hon. John T. McCullough, Judge, presiding.

JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

This appeal has two core issues.

One involves a discovery sanction.

The other, evidence of prior accidents.

We reverse and remand.

As this case involves no question of the sufficiency of the evidence establishing defendant's liability, an extended recitation of the facts is not necessary. Suffice it to say that on January 13, 1977, there was a collision between an automobile occupied by the plaintiffs (a mother and her two-year-old daughter) and one of the defendant's trains at a crossing in Hartsburg, Illinois. Both the mother and the daughter were injured.

They brought suit against the railroad and alleged, in part, that the railroad:

"Failed to provide adequate warning to the public of the approach of its trains although said crossing was an extra hazardous crossing due to the fact that the view of trains traveling upon the tracks of the defendant in a northerly direction by vehicles traveling in an easterly direction upon the County Road was obstructed, and further due to the fact that said crossing was heavily traveled by vehicular traffic; * * *."

At the trial, the plaintiffs presented evidence — including expert testimony — that the crossing was extra hazardous and required flashing signals for adequate protection. They also presented evidence of prior accidents at the crossing and the details of those accidents.

Objecting to the admission of the evidence concerning the prior accidents, the railroad argued that two of the accidents were dissimilar to the plaintiffs' accident. The trial court overruled the railroad's objection and allowed the evidence on the issue of notice to the railroad of the hazardous nature of the crossing.

In its defense, the railroad called its own expert who testified that the crossing was adequately protected. However, the railroad was denied, as a sanction for a discovery violation, the opportunity to call a second expert witness, Bernard Morris, an expert from the Illinois Commerce Commission.

The jury returned verdicts of $87,500 for the mother and $45,000 for the daughter. The railroad filed a post-trial motion alleging numerous trial errors and seeking a remittitur. The court reduced the verdict for the daughter to $22,500, but otherwise denied the railroad's requested relief. Plaintiffs appealed from the remittitur and the railroad cross-appealed the denial of its post-trial motion. Because of our decision on two of the issues raised on the cross-appeal, we need not address the others, including the question of remittitur.

I

• 1, 2 First, we hold that it was error to exclude the testimony ...


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