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06/19/89 Jean Schaffner, As v. Chicago & North Western

June 19, 1989




Present in the record in this case is an "appendix" to the portion of the transcript quoted above. Apparently prepared by one of the trial attorneys, the document provides a further description of the demonstration. The appendix states:


JEAN SCHAFFNER, as Guardian of the Estate and Person of

Transportation Company, Appellant)

541 N.E.2d 643, 129 Ill. 2d 1, 133 Ill. Dec. 432 1989.IL.929

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Anthony J. Bosco, Judge, presiding.


JUSTICE MILLER delivered the opinion of the court.


Daniel Schaffner was severely injured when the wheel disengaged from the front fork of his bicycle while he was riding over a railroad crossing in Highland Park. Daniel was later declared a disabled person as a result of the injuries he sustained in the accident, and his parents, Jean and Perry Schaffner, were appointed co-guardians of his estate. The Schaffners brought the present action on behalf of their son (plaintiff) in the circuit court of Cook County against the Chicago and North Western Transportation Company (North Western), owner of the railroad crossing where the accident occurred, and the Schwinn Bicycle Company (Schwinn), manufacturer of Daniel's bicycle. A jury returned a verdict in favor of the plaintiff and against North Western, and in favor of Schwinn and against the plaintiff; the jury determined the plaintiff's damages to be in the amount of $8,235,000. Judgment was entered on the verdict. Both North Western and the plaintiff appealed, and the appellate court affirmed the circuit court judgment. (161 Ill. App. 3d 742.) We allowed North Western's and the plaintiff's separate petitions for leave to appeal (cause Nos. 66080, 66090, respectively), and we consolidated the appeals for purposes of argument and Disposition.

Around 10 p.m. on September 4, 1976, the plaintiff, who was then 15 years old, and two of his friends, Brian Coxon and James Fiocchi, rode their bicycles to a movie theatre in Highland Park. The movie ended shortly before midnight, and the three boys then left the theatre and rode west on Central Avenue. James was in the lead, followed by the plaintiff and then Brian. As Daniel rode across the North Western railroad crossing, the front wheel of his bicycle disengaged from its fork, and the plaintiff flew over the handlebars, landing about 10 feet west of the railroad crossing; the bicycle landed on top of him. An ambulance was called, and the plaintiff was taken to the Highland Park hospital. There, a neuro-surgeon found that the plaintiff had sustained massive injuries to his brain. The plaintiff became comatose shortly after the accident, and he remained in that condition for more than two months. The plaintiff was not released from the hospital care until June 1977.

The plaintiff suffers from a number of permanent, disabling conditions as a result of the accident. These include impaired speech, unstable and abnormal gait, left-sided hemiparesis and spasticity, clawed left hand, blindness in his right eye, and loss of half the field of vision in his left eye. Also, the plaintiff engages in inappropriate, uninhibited behavior. Although the plaintiff is able to provide for certain basic needs, such as dressing and bathing himself, and is capable of performing simple household tasks, he requires supervision in his activities and is therefore unable to live alone. The accident has severely impaired the plaintiff's ability to learn, and he is considered unemployable. At the time of trial the plaintiff was living with his parents. The plaintiff's father died while the cause was pending in the appellate court, and Mrs. Schaffner is now the plaintiff's sole guardian.

The plaintiff's action against North Western was brought under common law negligence and statutory theories of liability, both of which were based on the allegedly poor condition of the Central Avenue crossing. The plaintiff sought to recover from Schwinn under strict liability in tort, alleging that the design of the bicycle was unreasonably dangerous. Originally, the plaintiff sought both compensatory and punitive damages from each defendant, but during trial the parties entered into a stipulation under which the plaintiff dismissed his claims for punitive damages and North Western and Schwinn agreed to submit to the jury verdict forms that required a judgment against at least one of the two defendants. North Western initially filed a claim against Schwinn for indemnity, but that action was dismissed before trial.

The parties presented extensive evidence regarding the condition of North Western's Central Avenue crossing and the design of the Schwinn bicycle the plaintiff was riding at the time of the accident. The Central Avenue crossing was originally constructed in 1959. It comprised two sets of railroad tracks, and the crossing was at grade; gumwood timbers were used for the crossing surface. In 1971, North Western decided to rebuild the crossing, and the company budgeted $8,870 for that purpose. The work was never performed, however, and the project was eventually cancelled. During 1974 and 1975 officials of Highland Park wrote to North Western to complain about the condition of the crossing, which was said to be rough and hazardous. In March 1977, six months after the accident at issue here, North Western again authorized the replacement of the crossing. At that time, a company document listed the Central Avenue crossing as the top priority among the crossings requiring repair in that division of the North Western rail system. The work was completed in June 1977, the same month that the plaintiff was released from hospital care and returned home.

The plaintiff introduced expert testimony from Joseph Kostur pertaining to the condition of the crossing. Kostur was employed by the Illinois Department of Transportation and had conducted safety-related inspections of railroad crossings in connection with his work. Based on his examination of photographs of the crossing taken shortly after the plaintiff's accident, Kostur stated that there were substantial deviations between the tops of the rails and the gumwood crossing surface. In Kostur's opinion, the roadway and rails were not substantially flush, and the crossing was therefore in violation of a rule of the Illinois Commerce Commission. Kostur's observations were supported by a number of witnesses who had examined the crossing shortly after the occurrence here. Schwinn employees Jay Towmley and Michael Fritz inspected the scene in September 1976. They testified that the gumwood timbers forming the crossing surface were 2 to 3 1/2 inches higher than the rails along the western pair of tracks, where the plaintiff's bicycle wheel had disengaged. The Schwinn employees rode a bicycle over the crossing, and they described it as being quite rough. They noticed that cars passing over the crossing would cause the timbers to bounce up several inches. The plaintiff's friends, Brian Coxon and James Fiocchi, similarly testified that the crossing was rough and uneven.

G. Rex Nichelson, an independent consultant and a professional engineer, testified as an expert witness in behalf of North Western. Viewing photographs of the Central Avenue crossing, Nichelson stated that the rails and crossing surface were substantially flush. Several Highland Park police officers who had driven over the crossing around the time of Daniel's accident testified that the crossing was not rough. Peter Conenna, the section foreman in charge of the stretch of track that includes the Central Avenue crossing, testified that the crossing had been in good condition throughout the period from 1971 to 1977.

At trial, the parties also introduced evidence concerning the design of the bicycle the plaintiff was riding at the time of the accident, a 1973 Schwinn "Continental" 10-speed. The front hub of the bicycle was equipped with a quick-release mechanism, which is a device that enables the user to remove the wheel from the front fork by turning a lever. According to a stipulation introduced into evidence, in the period from 1968 to 1985, Schwinn received 131 reports of incidents in which wheels disengaged from quick-release axles while moving. In 1977 Schwinn began selling its quick-release models with positive retention devices, which would prevent disengagement of the wheel in the event that the quick-release lever came open.

The plaintiff also presented the expert testimony of Irving Hazard, a mechanical engineer. Hazard stated that the design of Daniel's 1973 Schwinn bicycle was unreasonably dangerous because it did not have a positive retention device on the front axle, which would have prevented the wheel from disengaging as Daniel rode his bicycle over the rough crossing. Hazard believed that several retention devices, including one that Schwinn had developed by 1973, but had decided not to use, would have been effective for that purpose.

Arthur DeLong, an engineer, testified as an expert witness in Schwinn's behalf. DeLong believed that the design of the bicycle was reasonable. In his reconstruction of the accident, DeLong concluded that the plaintiff's bicycle had struck a depression 8 1/2 inches wide and 2 to 3 inches deep in the crossing at a 15- to 20-degree angle from perpendicular. According to DeLong, the impact caused the plaintiff to pull on his handlebars in the opposite direction. The force of that maneuver removed the clamping force of the quick-release mechanism and permitted the wheel to come free. Schwinn also presented evidence of laboratory tests that demonstrated the reliable performance of quick-release mechanisms like the one used on the plaintiff's bicycle.

Prior to the submission of the case to the jury, the parties agreed that the plaintiff's claim against each defendant for punitive damages would be dismissed, that neither defendant would contend that the plaintiff's conduct at the time of the accident caused or contributed to his injuries, and that the jury would receive verdict forms requiring a finding of liability against at least one of the defendants. The jury returned verdicts in favor of the plaintiff and against North Western, and in favor of Schwinn and against the plaintiff. The jury answered a special interrogatory to the effect that the plaintiff's bicycle was not in an unreasonably dangerous condition at the time of its manufacture and was not a proximate cause of the plaintiff's injuries. Using an itemized verdict form, the jury assessed a total of $8,235,000 in damages against North Western.

North Western and the plaintiff appealed the circuit court judgment. The appellate court affirmed, rejecting those parties' claims of error. (161 Ill. App. 3d 742.) Both North Western and the plaintiff have appealed the appellate court's decision. The plaintiff's appeal is a conditional one, however, for he seeks a new trial on his claim against Schwinn only in the event that North Western must be granted a new trial. North Western raises a number of allegations of error in support of its request for a new trial in this case, and we shall consider those issues in the sequence in which they are presented in the railroad's brief. I. Evidence of Subsequent Remedial Measures

North Western first argues that the trial Judge erred in permitting the plaintiff to present evidence of the railroad's replacement of the crossing in question less than a year after Daniel's accident occurred. Amici curiae, the Illinois Trial Lawyers Association and a number of railroad companies, were granted leave to submit briefs with respect to this issue.

As a general rule, evidence of subsequent remedial measures is not admissible as proof of negligence. (Grubb v. Illinois Terminal Co. (1937), 366 Ill. 330, 351; Hodges v. Percival (1890), 132 Ill. 53, 56-57; Lundy v. Whiting Corp. (1981), 93 Ill. App. 3d 244, 251-52; M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 407.1 (4th ed. 1984).) "The rationale for this long-standing rule is twofold: correction of unsafe conditions should not be deterred by the possibility that such an act will constitute an admission of negligence, and, more fundamentally, a post-occurrence change is insufficiently probative of prior negligence, because later carefulness does not necessarily imply prior neglect. [Citations.]" (Lundy, 93 Ill. App. 3d at 252.) Such evidence may be introduced for other purposes, however, and the plaintiff contends that several different grounds warranted its admission in this case.

The plaintiff asserts that the evidence was admissible to establish willful and wanton misconduct on the part of North Western, to demonstrate the feasibility of making repairs to the crossing, to rebut or impeach North Western's testimony regarding the condition of the crossing at the time of the accident, and to demonstrate willful and wanton misconduct on the part of North Western.

In the present case, the appellate court held that the evidence concerning North Western's post-accident replacement of the Central Avenue crossing was properly admitted, on the plaintiff's claim for punitive damages, as proof of the railroad's willful and wanton misconduct. (161 Ill. App. 3d at 754.) The appellate court relied on Collins v. Interroyal Corp. (1984), 126 Ill. App. 3d 244, for that proposition. The court noted that North Western did not move to strike the evidence after the punitive damages claim was dismissed.

We decline to read Collins as broadly as the appellate court did in this case. In Collins, a products liability action that included a claim for punitive damages, the plaintiff was injured when an adjusting screw fell out of a leg of the stool she was using, causing it to collapse. At trial, the plaintiff was allowed to introduce evidence of two modifications made by the defendant manufacturer to the original design of the stool leg. According to the plaintiff's expert witness, the first modification, denominated "design B," was, like the original design, unreasonably dangerous; the second modification, "design C," was not unreasonably dangerous. Design B went into production before the plaintiff was injured and, indeed, before the plaintiff's employer purchased the stool. Design C went into production after the plaintiff's accident. Other evidence indicated that after the manufacturer adopted design B, the company continued to sell, without modification, its inventory containing the original leg design.

The court in Collins held that the evidence concerning design C was admissible to establish the feasibility of an alternative design (126 Ill. App. 3d at 251; see also Kerns v. Engelke (1979), 76 Ill. 2d 154, 163) and that the evidence concerning design B was admissible to support the plaintiff's claim for punitive damages. Discussing the testimony relating to design B, the appellate court explained:

"With regard to [the plaintiff's expert's] testimony that design B was unreasonably dangerous, the trial court properly admitted it to show wilful and wanton misconduct. . . . While post-occurrence changes are insufficiently probative of a manufacturer's prior neglect, in this case, evidence of design B, including [the expert's] testimony that it was unreasonably dangerous, was probative of a course of conduct engaged in by Interroyal which was wilful and wanton. This design B testimony was relevant to prove that Interroyal, knowing of the specific defects in design A, failed to correct them even though the defect could have been cured easily. It was not until 1977 when Interroyal introduced design C that it produced a product which was not unreasonably dangerous. This evidence tended to show that Interroyal acted with conscious disregard for the safety of others." (126 Ill. App. 3d at 251.)

Thus, the design B evidence was admissible because it demonstrated that the manufacturer was aware of the unreasonably dangerous nature of the original design before the plaintiff's accident occurred. The court in Collins went on to note that there was also a question raised at trial whether the plaintiff had been using a design A stool or a design B stool at the time of the accident; the court concluded that the design B evidence "was admissible to show that plaintiff's injuries were caused by an unreasonably defective stool," regardless of which model she had actually used. 126 Ill. App. 3d at 252.

We do not construe Collins as purporting to establish a rule that evidence of post-occurrence remedial measures may be introduced as proof of willful and wanton misconduct. We note that the appellate court, in the present appeal, cited two other cases in the course of its Discussion of this question, Stromquist v. Burlington Northern, Inc. (1983), 112 Ill. App. 3d 37, and First National Bank v. Illinois Central Gulf R.R. Co. (1978), 62 Ill. App. 3d 36. Stromquist and First National Bank upheld awards of punitive damages on the strength of evidence establishing the defendants' pre-accident notice of the allegedly dangerous conditions of their crossings; the two cases did not otherwise speak to the issue here.

We decline to approve the introduction of the evidence of North Western's post-occurrence remedial measures in connection with the plaintiff's claim, which was later withdrawn, seeking punitive damages. The same policy considerations that militate against admission of that evidence as proof of negligence, discussed earlier, counsel against its admission as proof of willful and wanton misconduct. Nor do we believe that the evidence presented here of the subsequent replacement of the Central Avenue railroad crossing may be justified on either of the other grounds suggested by the plaintiff. North Western did not dispute that replacement of the crossing was feasible. (Cf. Dallas v. Granite City Steel Co. (1965), 64 Ill. App. 2d 409, 423-24 (evidence of post-accident remedial measure admissible where defendant contested financial feasibility of remedy).) And it cannot be said that the evidence served to rebut North Western's testimony regarding the condition of the crossing, for the railroad did not contend that the crossing never required maintenance.

We believe, however, that any error in the introduction of the evidence was harmless. (See Hodges, 132 Ill. at 57-59 (error in admission of post-accident remedial measure not prejudicial).) The jury in this case received testimony from a variety of witnesses establishing that the crossing was in need of repair at the time of Daniel's accident. The jurors learned that North Western had originally authorized replacement of the crossing in 1971 but that the railroad had later cancelled the project. The jurors also learned of the actions of Highland Park officials, who had complained to North Western about the condition of the crossing. Finally, a number of witnesses testified to the deteriorated condition of the crossing in September 1976, when the accident occurred. In view of the substantial amount of competent evidence regarding the condition of the crossing that was introduced during the course of this lengthy trial, we do not consider that North Western was prejudiced by the testimony concerning its eventual replacement of the crossing. We note, too, that the plan for replacement of the crossing did not come immediately after the accident but rather was formulated some six months later; the jurors may have considered that North Western believed that passage of time had caused deterioration sufficient to warrant the crossing's repair. II. Rulings on Motions in Limine

In the present appeal North Western also contests a number of rulings made by the trial Judge on motions in limine filed by the parties in this case.

A. Photographs

North Western argues that the trial Judge erred in excluding certain photographs of the accident scene that it offered into evidence. Unlike the photographs offered and introduced into evidence by the plaintiff and by Schwinn, which generally depicted the railroad tracks in a north-south direction, North Western's photographs showed the crossing from an east-west perspective, perpendicular to the tracks. North Western maintains that the other parties' photographs improperly accentuated the appearance of the flangeways, or the gaps running between the rails and surrounding timbers, and that its own photographs more accurately depicted the condition of the crossing.

The decision whether to admit or exclude photographic evidence or exhibits is reserved to the discretion of the trial Judge. (Lindsay v. Appleby (1980), 91 Ill. App. 3d 705, 710-11; Kyowski v. Burns (1979), 70 Ill. App. 3d 1009, 1016-17; see People v. Evans (1988), 125 Ill. 2d 50, 96-97 (photographs of fetus of pregnant murder victim); People v. Fierer (1988), 124 Ill. 2d 176, 193 (pre-autopsy photographs of murder victim showing wounds).) We cannot say that the trial Judge abused his discretion in excluding North Western's photographs. Central Avenue, where it crosses the North Western tracks, was a one-way street, and at the time of the accident Daniel and his friends were riding in the wrong direction. Before trial, the court granted the plaintiff's motion in limine to preclude evidence and argument that Daniel was riding his bicycle in the wrong direction on a one-way street. The photographs submitted by North Western showed a number of street signs that clearly indicated the proper flow of traffic in the area of the crossing, and the trial Judge was correct in excluding the photographs on that ground. We note, too, that plaintiff's counsel suggested that the photographs be cropped to obviate their potential prejudice, but North Western did not choose to do so in the suggested manner.

B. Tampering

North Western next argues that the circuit Judge erred in granting the plaintiff's motions in limine to exclude certain evidence and argument on the possibility that someone might have tampered with the quick-release mechanism on Daniel's bicycle before the accident occurred.

The evidence in question consisted of several statements made by Coxon and Fiocchi in their depositions regarding the possibility that someone might have tampered with the quick-release mechanism on Daniel's bicycle. The plaintiff also moved to preclude the defendants from eliciting such evidence from the expert witnesses in the case. The trial Judge granted the motions. North Western now contends that the rulings were erroneous and denied the railroad the opportunity to challenge the plaintiff's theory of causation.

Contrary to North Western's view, there was no competent evidence of tampering in this case. (Cf. Tomasovic v. American Honda Motor Co. (1988), 171 Ill. App. 3d 979, 989-90 (trial court properly admitted expert witness's testimony that latch hook on motorcycle gas cap had been fractured by tampering before accident occurred).) What the plaintiff sought to exclude was merely speculation that the mechanism might have been tampered with. We would observe, too, that ...

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