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Carter v. Chicago & Ill. Midland Ry. Co.





Appeal from the Circuit Court of Menard County; the Hon. Lyle E. Lipe, Judge, presiding.


Plaintiff, in his capacity as executor of his deceased wife's estate, brought a wrongful death action in the circuit court of Menard County against the defendant. The cause was tried to a jury which found in favor of the plaintiff and against the defendant, but on comparative negligence principles found the decedent to be 90% at fault. The trial court reduced the verdict accordingly and entered judgment thereon; it also denied plaintiff's post-trial motion. Plaintiff has appealed, claiming that the trial court committed certain errors in ruling on evidence and instructions and that the jury's award was insufficient and against the manifest weight of the evidence. Finding no error, we affirm.

Decedent died instantly when the van which she was driving was struck by one of defendant's trains at a public crossing in Menard County. Decedent was traveling east and the train north at the time of the accident. Plaintiff alleged in his complaint that the defendant was negligent in failing to sound the whistle, in traveling at an unreasonable speed, in failing to maintain a proper lookout, and in failing to maintain the crossing in the proper fashion.

Testimony at trial revealed that the train crew consisted of five persons and the train consisted of three locomotives, four cars, and a caboose. The engineer was seated on the right side of the lead locomotive and the fireman on the left side; the head brakeman was on the right side of the second locomotive, and the rear brakeman and conductor were in the caboose. The fireman had died prior to trial, and since the van approached the train from its left side, there were no eyewitnesses.

Various witnesses testified as to the sounding of the whistle. The four surviving crew members stated that it was sounded but they were unable to give any precise estimate of distance from the crossing when the sound was made. A witness who lived 535 feet south of the crossing stated that he heard the whistle as the train passed his residence. Another witness who was riding a bicycle about a mile from the crossing did not recall hearing the whistle. A deputy sheriff testified that the engineer told him soon after the accident when he was investigating it that he sounded the whistle at the culvert south of the crossing. He stated that there were two culverts in that area, one 228 yards south of the crossing and another 170 to 200 yards further south.

Testimony regarding speed came from both sides. The crew members testified that the speed was between 30 and 40 miles per hour immediately prior to the collision; the defendant's superintendent testified that 40 miles per hour was the limit imposed by management prerogative. Plaintiff introduced certain speed tapes purported to have been made by a recording device on the train. Plaintiff's expert stated that the tapes showed a speed of 41 or 42 miles per hour immediately before the collision; defendant's expert stated that the tapes showed a speed of "a little over 40 miles an hour." These tapes, and their use at trial, form one of the principal complaints on appeal.

The condition of the crossing was established largely through photographic exhibits. Friends and relatives of the decedent testified as to her familiarity with the crossing and her personal habits and characteristics, which were said to be exemplary. An economist, testifying as an expert, fixed the pecuniary loss attributable to her death at $259,000.

The jury returned a verdict for the plaintiff in the sum of $120,000 together with a finding of 90% negligence on the part of the decedent. Plaintiff's recovery then became $12,000. His post-trial motion was denied, and this appeal ensued.

• 1 Plaintiff's first contention centers upon the speed tapes. He claims that although he introduced them into evidence as his exhibits, he should have been permitted to attack their authenticity; he also maintains that he should have been permitted to show that the defendant initially failed to disclose their existence.

The accident occurred on October 9, 1981; plaintiff filed suit on February 10, 1982, and submitted a set of interrogatories and motion to produce to the defendant. On April 23, 1982, defendant answered and stated that no speed recording device was on the train. Later on, early in 1983, defendant disclosed that a speed tape did exist and provided plaintiff with a copy of it on March 16, 1983. Trial began on January 9, 1984.

Prior to trial, plaintiff indicated that he wished to call the jury's attention to this delay in disclosure and that he planned to attack the authenticity of the speed tapes. The defendant then stated that it did not intend to introduce the speed tapes into evidence. The trial court ruled that the plaintiff would not be allowed to call the jury's attention to the disclosure violation since he had not been prejudiced by the delay. The court also ruled that if the plaintiff chose to introduce the speed tapes into evidence, he could not later attack their authenticity. Plaintiff now contends that these rulings were erroneous.

A party, when faced with a discovery violation, generally a nondisclosure or a late disclosure, may approach the problem from either of two directions, depending on the nature of the evidence. If the evidence is favorable to him, he may wish it to be introduced, but he may also wish to place before the trier of fact the misbehavior of the other party. On the other hand, if the evidence is not favorable to him, he may wish to debar it altogether. These different approaches are governed by different principles of law.

Debarring of the evidence itself is a sanction for nondisclosure or late disclosure and is governed by Supreme Court Rule 219(c) (87 Ill.2d R. 219(c)). Admission of the fact of nondisclosure or late disclosure is governed by ordinary common law principles of evidence, that is, relevancy, competency and materiality. Professor Wigmore classifies it as a consciousness of guilt. 2 Wigmore, Evidence sec. 267 (3d ed. 1940).

Either approach rests fundamentally on the discretion of the trial court. Two prior authorities ...

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