Appeal from the Circuit Court of Cook County; the Hon. James
E. Strunck, Judge, presiding.
JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
As a result of a car-train collision in northwestern Indiana, plaintiffs Harriet Anderson, National Boulevard Bank of Chicago, as administrator of the estate of Anthony T. Anderson, a minor, deceased, Nedra Anderson, and Nathan Anderson brought suit against defendant, Chesapeake & Ohio Railway Company (C&O). Plaintiffs' 16-count amended complaint included allegations of wrongful death, negligence, and wilful and wanton misconduct. The suit prayed for both compensatory and exemplary damages.
This court granted C&O's petition for leave to appeal from the trial court's granting of a mistrial and ordering a new trial on all issues in the case. On appeal, C&O contends that: (1) the trial court's granting of a mistrial based upon the jury's "inconsistent verdicts" was erroneous; (2) the trial court erred in denying defendant's motion for a directed verdict on the wilful and wanton counts at the close of plaintiffs' presentation of the evidence; (3) the trial court erred in granting a new trial on the issues involving compensatory damages, and (4) the court erred in its refusal to strike the testimony of plaintiffs' expert witness.
On May 28, 1974, Harriet Anderson, an Illinois resident, was driving her car eastbound on Route 30 in Lake County, Indiana. Seated in the passenger's seat was Mrs. Anderson's daughter, Nedra. Behind Mrs. Anderson was her son, Nathan, and another son, Anthony, was seated behind Nedra. On the morning in question, the road was dry and the traffic moderate to heavy. Harriet Anderson was traveling at a speed of 40 to 45 miles per hour.
Route 30 is a four-lane divided highway with a posted 50 mile-per-hour speed limit. A single railroad crossing, under the control of C&O, intersects Route 30 in a general northwest to southeast direction. For a car traveling eastbound, the approach angle of the train would be approximately 150 degrees. The crossing has advance warning signs and cross-bucks with flasher signals. Harriet Anderson had traveled Route 30 many times and was familiar with the particular railroad crossing.
On the morning of the accident, Mrs. Anderson was traveling in the left lane, closest to the center of the highway. A C&O locomotive pulling a second locomotive and a caboose was heading northwest toward Chicago. The east sight line was an open flat field with an empty billboard frame and some bushes. Harriet Anderson testified that she saw the advance warning signs and recalled seeing traffic to the right side of her vehicle. The radio and air conditioning were on in the car, and the windows were closed. She did not hear the train's bell or whistle, nor did she see the headlights. Mrs. Anderson testified that, in fact, she did not see the train prior to the accident and became aware of it only immediately before impact when her daughter called out, "Mommy, there's a train." Both Nedra and Nathan Anderson indicated that they also were unaware of the train until that time.
Roger Leedy, the locomotive engineer, testified that when he realized the Anderson vehicle had entered the crossing, he engaged the emergency brake. He stated that the train was traveling at a speed of 50 miles per hour in a 60 mile-per-hour zone. The train struck the car on the right passenger side and sheared it in half. Harriet and Nedra Anderson remained strapped in their seats, while Nathan and Anthony were thrown from the car. All four suffered injuries, and, as a result, Anthony died four days later.
Several witnesses testified that they observed the flashing signals working prior to the collision, although there was conflicting evidence as to the period of time they were flashing. These signals were triggered by a relay switch 1,938 feet from the crossing. The signals had been tested on two occasions in the month prior to the accident as well as on the day of the occurrence and found to be in proper working order. The locomotive engineer testified that he had blown the train whistle at the whistle post which was 1,000 feet from the crossing. Witnesses also testified that they heard blasts of the train horn and whistle as the train approached and as it entered the crossing, up until the time of the accident.
During the jury instruction conference, defense counsel expressed concern that the instruction regarding exemplary damages would confuse the jury members. He complained that, whereas the other verdict forms provided the jury with an explicit option to sign or not, the exemplary damages verdict form provided that the jury members should sign only if they all agreed that such damages should be awarded. The trial court suggested that a second paragraph be added to the form to instruct the jury to return the verdict form unsigned or unused if members decided not to award exemplary damages. Plaintiffs' counsel agreed to have the amended verdict form and instruction prepared for the following day; however, this material was not submitted.
During deliberations, the trial court received a question from the jury asking: "On the exemplary damages, must all jurors agree on the amount or can the majority sign the verdict?" The court responded that the verdict had to be unanimous. The jury then asked whether they could sign only three forms if they were unable to come to a decision on the fourth form. After determining that the form in question was the exemplary damages form, the court responded in a note, stating:
"If you are in agreement as to the awarding of exemplary damages, you must be in agreement as to the amount, and you must all sign the verdict form. If you are not in agreement as to the awarding of exemplary damages or in agreement as to the amount thereof, then you need not sign the verdict form. Give due consideration to this matter."
On the compensatory damages issues, the jury found unanimously for the plaintiffs. Nedra Anderson was awarded $4,500; Nathan Anderson, $2,000; the estate of Anthony Anderson, $30,000; and Harriet Anderson, $12,000. The jury further found that the percentage of negligence that was a proximate cause of Harriet Anderson's injury attributable to her was 71%. Her award was reduced by this percentage. In the wrongful death action, the jury awarded Nedra and Nathan $2,750 each. Harriet Anderson was awarded $15,000, which also was reduced by 71%, the percentage of negligence that was the proximate cause of the death of Anthony Anderson attributable to her.
Eight of the eleven jurors signed the exemplary damages verdict form, assessing $200,000 in damages. The court stated, "That verdict is returned incomplete. * * * The Court will enter judgment." Judgment for $200,000 was entered on June 16, 1982.
In post-trial motions, plaintiffs moved for a new trial on all issues and for a new trial on the exemplary damage counts only. Defendants moved for judgment notwithstanding the verdict on the issue of exemplary damages as well as to vacate the exemplary damage verdict.
On June 21, 1983, the trial court vacated the $200,000 exemplary damage judgment as having been entered erroneously by the clerk of the court. On August 2, 1983, the court denied C&O's motion for judgment notwithstanding the verdict, plaintiffs' motion for a new trial on the exemplary damages issues, and plaintiffs' motion for a new trial on all the issues. The court then declared a mistrial based upon the "inconsistency of the verdicts," ordered a new trial on all issues, and vacated all judgments entered on June 16, 1982. Trial was rescheduled for September 2, 1983.
• 1 Defendants first contend that the trial court erred in granting a mistrial and ordering a new trial on all issues based on the "inconsistency of the verdicts." The granting of a mistrial is within the sound discretion of the trial court and will not be disturbed on review absent a clear abuse of discretion. (Tuttle v. Fruehauf Division of Fruehauf Corp. (1984), 122 Ill. App.3d 835, 844, 462 N.E.2d 645; Benuska v. Dahl (1980), 87 Ill. App.3d 911, 913, 410 N.E.2d 249.) Inconsistent verdicts typically are found where a jury has returned both general and special verdicts that are not in accord with one another. (See Moricoli v. P&S Management Co. (1982), 104 Ill. App.3d 234, 432 N.E.2d 903.) As previously discussed, the jury found in favor of plaintiffs on the compensatory damages issues, but on the exemplary damages issues, only 8 of the 11 jurors signed the verdict form. Therefore, there was effectively no verdict for either plaintiffs or defendant on the exemplary damages issues. (See, e.g., Roadruck v. Schultz (1948), 333 Ill. App. 476, 490-91, 77 N.E.2d 874.) Because there was a verdict only on the issues involving compensatory damages, we find that the trial court erred in declaring a mistrial on the basis of "inconsistent verdicts."
• 2 C&O contends that the trial court should have directed a verdict in its favor on the wilful and wanton counts at the close of plaintiffs' presentation of the evidence. The question of whether there has been wilful and wanton misconduct generally is a question of fact to be determined by a jury. (Hadley v. Witt Unit School District 66 (1984), 123 Ill. App.3d 19, 22, 462 N.E.2d 877.) When, however, all of the evidence viewed in its aspect most favorable to the opponent so overwhelmingly favors the movant that no contrary verdict based on that ...