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07/17/97 SHEILA JACOBS v. UNION PACIFIC RAILROAD

July 17, 1997

SHEILA JACOBS, SPECIAL ADMINISTRATRIX OF THE ESTATE OF GARY L. JACOBS, DECEASED; BENJAMIN JACOBS, A MINOR, BY AND THROUGH HIS MOTHER AND NEXT FRIEND, SHEILA JACOBS; AND SHEILA JACOBS, INDIVIDUALLY, PLAINTIFFS-APPELLEES,
v.
UNION PACIFIC RAILROAD COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of St. Clair County. No. 93-L-505. Honorable Jerome F. Lopinot, Judge, presiding.

As Corrected August 1, 1997.

The Honorable Justice Maag delivered the opinion of the court. Kuehn, P.j., concurs. Justice Goldenhersh, dissenting.

The opinion of the court was delivered by: Maag

The Honorable Justice MAAG delivered the opinion of the court:

The defendant, Union Pacific Railroad Company, appeals from a circuit court order granting a new trial to plaintiff under Rule 306(a)(1) (155 Ill. 2d R. 306(a)(1)). We reverse.

In March 1992, Gary Jacobs and his minor son, Benjamin, were driving their pickup truck to market with a trailer of hogs in tow. Upon crossing a railroad grade intersection in Shelby County, the truck collided with defendant's train. Gary Jacobs died as a result of injuries sustained in the accident.

Gary Jacob's surviving spouse, Sheila Jacobs, filed suit on behalf of herself, the estate of Gary Jacobs, and the couple's son as next friend (collectively referred to as "plaintiff").

Prior to trial, defendant filed a petition for substitution of judge for cause pursuant to section 2-1001(a)(3) of the Code of Civil Procedure (735 ILCS 5/2-1001(a)(3) (West Supp. 1993)). Defendant's request was based upon remarks made by Judge Lopinot in March 1994, during the trial of a previous, unrelated case in which Union Pacific Railroad Company was a defendant. In that previous case, Judge Lopinot remarked on the record that he had "no great love" for Union Pacific Railroad, that Union Pacific "has not been too clean in my courtroom," that he considered Union Pacific to be a "whore," and that he was determined to give the plaintiff in that case a fair trial. The motion was referred to Judge James Donovan for hearing. Judge Donovan denied the motion.

At trial, deputy sheriff Donald Koonce testified regarding his investigation of the collision. Koonce explained that he had prepared two diagrams of the accident scene, one on the date of the collision and another the next day. The latter diagram depicted a more accurate measurement of the skid marks made by Gary Jacob's pickup truck, according to Koonce, because the wreckage on the day of the accident obscured the view of a portion of the skid marks. Specifically, the first drawing showed the marks to be 10 feet long. When remeasured the following day, Koonce found the marks to be 18 feet long. Koonce testified that the second drawing showing 18-foot marks was correct and the first drawing was wrong.

David Youngberg, a certified accident-reconstruction expert, testified for the defense regarding Gary Jacob's opportunity to avoid the collision. Youngberg testified that he had based his opinion regarding the skid marks upon the initial, inaccurate drawing prepared by Officer Koonce. Youngberg then sought to alter his prior deposition testimony and express opinions with regard to the 18-foot skid marks. The plaintiff objected to Youngberg's entire testimony and moved to strike it from the record. Plaintiff also asked that the jury be told to disregard Youngberg's testimony. The court granted the motion. Plaintiff at no time objected to the court's order or its instruction to the jury.

Later, during closing argument, in response to previous suggestions that plaintiff had employed high-priced experts to testify on her behalf, plaintiff's counsel declared:

"What have you heard in this case? Well, you've heard much -- much harangue from Mr. Jones that Mr. Weilmuenster and I have gone out and hired two of the best experts that money can buy. And there's no question experts are expensive when you have Ph.D.'s and you have professors coming in from universities, who have their own consulting businesses on the side, who are acknowledged [as] the most finest [sic] experts in this state and possibly in this country on railroad grade safety crossings, railroad crossings -- railroad grade cross -- crossing safety and economics."

Defense counsel, in closing argument, thereby responded:

"And Mr. Young says, well, he brought in two of the best experts that money can buy. Well, money shouldn't buy justice. It's not a matter of how -- how much money you pay somebody. And the judge will tell you in the instructions, he will tell you that the evaluation and the credibility of any witness is for you to determine. And one of the issues you can decide in deciding credibility is the witnesses' financial motive or financial interest that they have when they come and take the stand.

So I'd suggest to you that you consider that fact when you consider the testimony of these witnesses that came in and were paid substantial sums of money to come in and testify. Do they have a financial interest? By all means, they have a financial interest and ...


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