Appeal from the Circuit Court of Cook County; the Hon. John M.
Breen, Judge, presiding.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 26, 1984.
Plaintiff, James C. Bankston, brought this action for damages against defendant, Chesapeake & Ohio Railway Company (hereinafter C&O) under the Federal Boiler Inspection Act (45 U.S.C. § 22 et seq. (1982)), alleging that he sustained injuries in a fall on the outside catwalk of a locomotive. The jury returned a $300,000 verdict in favor of Bankston and against the C&O. The C&O now appeals, contending that the trial court erred in giving the jury two instructions, each of which concerned the violation of a Federal regulation.
Both instructions were relevant to the issue of liability and not the issue of damages. On the issue of liability, Bankston testified that on October 18, 1977, he was working as an engineer for the C&O. On that day, he was assigned to take a freight train from Charlevoix, Michigan, to Petoskey, Michigan. He had two locomotives, and he and Calvin Cornett, the head brakeman, were on the first locomotive. Bankston positioned the locomotives to "tie into" the train, and when the locomotives reached the standing train cars, Cornett got off the first locomotive to attach the cars. After doing so, Cornett returned to the first locomotive. The train then moved a short distance, but it developed a brake problem. Cornett left the first locomotive to correct the problem. While Bankston waited for Cornett to return, he decided that he would need power from both locomotives to make the trip to Petoskey. Since the second locomotive was running but not supplying power, he decided to go back to the second locomotive to put it "on line" so that it would supply power. Bankston then exited a cab door of the first locomotive and took about two or three steps on an exterior catwalk which ran the entire length of the locomotive. At that point, he slipped on "something" and fell.
Cornett witnessed Bankston's fall. He testified that as he returned to the first locomotive from correcting the brake problem, he saw Bankston take two or three steps on the catwalk and then saw Bankston slip and fall on the catwalk. Cornett looked at the catwalk where Bankston had fallen and saw a puddle of oil. The puddle was approximately one foot by one foot in area.
There was a considerable amount of evidence in the court below concerning the nature of the injuries that Bankston suffered as a result of his fall. We need not consider this evidence here, however, because it is not relevant to the issues concerning the propriety of the instructions given to the jury.
The C&O first contends that the trial court erred by instructing the jury regarding a possible violation of 49 C.F.R. sec. 230.203(a). The instruction read as follows:
"There was in force in the United States of America, at the time of the occurrence in question, a Federal regulation, which provided that:
Each locomotive unit when used in road service shall be inspected at least every 24 hours, except locomotive units operated on through runs exceeding 24 hours may be inspected at the next crew change point immediately beyond the point at which the 24-hour period expires.
If you decide that defendant violated that Federal regulation on the occasion in question, then you may consider that fact together with all the facts and circumstances in evidence in determining whether or not defendant violated the Federal Boiler Inspection Act before and at the time of the occurrence." *fn1
According to the C&O, it was reversible error to give this instruction in this case because the uncontroverted evidence in the court below showed that the C&O did inspect the locomotive on which plaintiff claimed he was injured. It was undisputed that Bankston's fall occurred at 7:05 p.m. on October 18, 1977. Defendant's exhibit No. 7, the official inspection report for the locomotive on which Bankston was injured, showed that that locomotive had been inspected at 11 o'clock on October 17, 1977. In addition, Richard LaMange, a road foreman and assistant trainmaster for the C&O, testified concerning the inspection report. He testified, both on direct examination and cross-examination, that the locomotive had been inspected at 11 p.m. on October 17, 1977. No other testimony was introduced as to the time of the inspection. Since Bankston's fall occurred within 24 hours of the inspection, there is no evidence in the record from which the jury could have found a violation of the regulation set forth in the instruction.
• 1, 2 "Instructions concerning violations of a statute or ordinance should not be given unless the evidence is adequate to support a finding that a violation actually occurred." (Illinois Pattern Jury Instructions, Civil, No. 60.00, Introduction, at 250 (2d ed. 1971); Figarelli v. Ihde (1976), 39 Ill. App.3d 1023, 1026, 351 N.E.2d 624.) This rule is equally applicable to an instruction concerning the violation of the Federal regulation in question. Since we have held that there is no evidence adequate to support a violation of the regulation, the giving of the instruction was error.
Bankston contends, however, that we should not even reach the question of the propriety of this instruction because the C&O never objected to this instruction at the instruction conference in the court below on the basis that Bankston presented no evidence of periodic inspections. (See Brown v. Decatur Memorial Hospital (1980), 83 Ill.2d 344, 350, 415 N.E.2d 337.) He concedes, however, that the C&O did object to the instruction on the basis that it had presented evidence of an inspection within 24 hours prior to the accident. We think that this objection was sufficient to preserve this issue for review.
• 3 Bankston further contends that the instruction was proper because the inspection report itself does not indicate whether the report was made at 11 a.m. or 11 p.m. on October 17, 1977. He argues that given this circumstance the time of the inspection was a proper question for the jury. This argument, however, ignores Richard LaMange's uncontroverted testimony that the inspection occurred at 11 p.m. There was no evidence to the contrary, and plaintiff's counsel never challenged LaMange's testimony on this point. Moreover, in order to justify giving an instruction, there must be some evidence in the record to support the theory set out in the instruction. (Figarelli v. Ihde (1976), 39 Ill. App.3d 1023, 1028; see also Shelton v. Sunniday Chevrolet (1981), 97 Ill. App.3d 543, 551, 422 N.E.2d 993; Darby v. Checker Co. (1972), 6 Ill. App.3d 188, 196, 285 N.E.2d 217.) We do not believe that an inspection report which does not indicate whether it was prepared at 11 a.m. or 11 p.m. constitutes "some evidence" that the inspection occurred at 11 a.m., where a witness gives uncontradicted testimony that the inspection occurred at 11 p.m. Accordingly, we do not believe that there was some evidence of a violation of the regulation.
• 4 We do, however, agree with Bankston that the giving of this instruction was harmless error. We base this conclusion upon our reading of the Federal Boiler Inspection Act. Section 23 ...