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Ott v. Burlington Northern R.r. Co.

OPINION FILED JANUARY 8, 1986.

FRANK OTT, PLAINTIFF-APPELLEE,

v.

BURLINGTON NORTHERN RAILROAD COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County; the Hon. Charles W. Chapman, Judge, presiding.

JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 18, 1986.

The plaintiff, Frank Ott, brought this action against the defendant, Burlington Northern Railroad Company, Inc., pursuant to the Federal Employers' Liability Act (45 U.S.C. § 51 et seq. (1982)), seeking damages allegedly caused when the plaintiff fell and injured his knee. A jury rendered a verdict in favor of the plaintiff in the amount of $545,000. The trial court denied the defendant's post-trial motion, and the defendant has appealed raising three issues for review: (1) whether the trial court ruled correctly on certain objections pertaining to the admission and exclusion of certain evidence; (2) whether the jury was properly instructed; and (3) whether the verdict was excessive as a matter of law. Because of the disposition we make, we address only the issue raised concerning the instruction of the jury, specifically, whether the trial court erred in refusing to submit to the jury the modified general verdict form tendered by the defendant requiring the jury to find the total amount of the damages suffered by the plaintiff, to find the percentage of negligence attributable solely to the plaintiff, and to assess the amount of the plaintiff's recoverable damages. Instead of giving the modified general verdict form requested by the defendant, the trial court gave the general verdict form, which is Illinois Pattern Jury Instruction (IPI), Civil, No. 45.01 (2d ed. 1971). The verdict form tendered by the defendant, denominated defendant's instruction No. 10, is IPI Civil 2d No. A45.06 (1981 Supp.) with a slight modification that is irrelevant here. Defendant's instruction No. 10 was offered in conjunction with defendant's instruction No. 13, which was refused by the trial court as well. Defendant's instruction No. 13 is IPI Civil 2d No. 45.01, modified for use with IPI Civil 2d No. A45.06 (1981 Supp.). If given, defendant's instruction No. 13 would have informed the jury as to which verdict form to use.

Defendant's instruction No. 10 states as follows:

"We, the Jury, find for the plaintiff and against the defendant and further find the following:

First: without taking into consideration the question of reduction of damages due to the negligence of the plaintiff, if any, we find that the total amount of damages suffered by the plaintiff resulting in whole or in part from the occurrence in question is $ ____.

Second: Assuming that 100% represents the total combined negligence of the plaintiff and of the defendant we find that the percentage of negligence that was attributable to the plaintiff is ____ percent (____ %).

Third: After reducing the total damages sustained by the plaintiff by the percentage of negligence attributable to the plaintiff, we assess plaintiff's recoverable damages in the sum of $ ____."

Spaces for the signatures of the jurors are provided thereafter.

The defendant describes its instructions Nos. 10 and 13 as "in the nature of a special interrogatory," stating that "[t]ogether, they constitute a special interrogatory to the jury, in that they required the jury to make the * * * findings [enumerated above] in the event of a verdict for the plaintiff." The defendant maintains that section 2-1108 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1108) required the trial court to give defendant's instructions Nos. 10 and 13 to the jury when asked to do so. Section 2-1108 provides:

"Unless the nature of the case requires otherwise, the jury shall render a general verdict. The jury may be required by the court, and must be required on request of any party, to find specially upon any material question or questions of fact submitted to the jury in writing. Special interrogatories shall be tendered, objected to, ruled upon and submitted to the jury as in the case of instructions. Submitting or refusing to submit a question of fact to the jury may be reviewed on appeal, as a ruling on a question of law. When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may enter judgment accordingly."

In support of its position the defendant argues that "the percentage of negligence attributable to the plaintiff was a material question of fact. After the requested instructions were refused, there was no way to know the jury's determination of this ultimate fact issue."

The plaintiff argues that section 2-1108 "deals with two separate topics, verdicts and special interrogatories," and contends that the defendant's instructions Nos. 10 and 13 were not special interrogatories because they were marked and tendered as instructions. The plaintiff describes the two instructions as "a special verdict form and the companion instruction instructing the jury as to which verdict form to use" and maintains that section 2-1108 requires the jury to render a general verdict unless the nature of the case requires otherwise, that general verdicts are the rule, and that special verdicts are to be used only in "exceptional circumstances," which are absent in the instant case.

In their briefs, both of the parties cite the cases of Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 703, 450 N.E.2d 1199, Harris v. Day (1983), 115 Ill. App.3d 762, 451 N.E.2d 262, and Seward v. Griffin (1983), 116 Ill. App.3d 749, 452 N.E.2d 558. Both parties note that the rejection of similar verdict forms in these three cases was held not to constitute reversible error. However, the defendant points out correctly that in these three cases the provision of section 2-1108 that the jury be ...


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