Babcock v. Chesapeake and O. Ry. Co., 78-1261

Citation83 Ill.App.3d 919,404 N.E.2d 265
Decision Date28 December 1979
Docket NumberNo. 78-1261,78-1261
Parties, 38 Ill.Dec. 841 Mark BABCOCK, a minor, by his guardian The Northern Trust Company, a corporation, Plaintiff-Appellee, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a corporation, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

James R. Gannon and Paul V. Esposito, Lewis, Overbeck, & Furman, Chicago, for defendant-appellant.

John G. Phillips, Ltd., Sidney Z. Karasik, Chicago, for plaintiff-appellee.

WILSON, Justice:

A jury found defendant guilty of negligence and awarded plaintiff, a seven year nine month old boy, $925,000 for injuries sustained when defendant's train severed his feet. On appeal, defendant contends that it did not receive a fair trial because of numerous trial errors. We agree and consequently, we reverse and remand for a new trial.

Defendant has not presented us with any question concerning the factual basis for the jury's verdict, and we, therefore, will only state those facts necessary for an understanding of our discussion of the various assigned errors. The injuries involved in this lawsuit occurred on December 17, 1969 in Grand Rapids, Michigan. Plaintiff's theory of the case was that he was negligently injured while exercising due care. Plaintiff, who was the only eyewitness to the incident, testified that at about 5:45 p. m. he arrived at the Watson Street crossing of the Chesapeake & Ohio Railway Company tracks. He was unable to cross the tracks because the train was stopped and blocked the crossing. While the train was stopped, plaintiff counted to himself for about ten minutes and then walked into the middle of Watson Street to see if he could see any member of the train's crew. After about two minutes he returned to the sidewalk and waited another minute to see if the train would move. When it did not move, he walked about 70 feet south of the Watson Street crossing to see if there was any unobstructed place where he could cross the tracks; he could not find any such place. On his return to Watson Street, he saw a man crawl under the train to get to the other side of the tracks. Plaintiff then returned to the point 70 feet south of the crossing and there attempted to crawl under the train. While he was crawling under, the train moved without warning and severed his two feet.

Defendant's theory of the case was that plaintiff did not first attempt to cross the Watson Street crossing before crawling under the train and did not exercise due care at the time of the injuries. It presented testimony that its train had only been stopped for one minute prior to the time of the injuries. It also presented testimony that parts of plaintiff's feet and shoes were found at a point about 170 feet from the Watson Street crossing. It attempted to present testimony that the only footprints leading up to the location where the parts were discovered were small footprints which came from a spur track about 170 feet from the Watson Street crossing, but the trial court refused to allow the testimony.


It is a fundamental principle of our system of justice that every defendant is entitled to a fair trial. Various safeguards have been built into our judicial system to assure a fair trial. However, a fair trial does not necessarily mean an error-free trial. Often, during the fast moving and often heated exchanges which occur during the trial of a lawsuit, erroneous rulings and improper comments are made. Erroneous rulings and improper comments only result in a denial of a fair trial if they operate to the prejudice of defendant or unduly affect the outcome of the trial. (Bruske v. Arnold (1969), 44 Ill.2d 132, 254 N.E.2d 453.) We hold that the cumulative effect of the errors discussed below so prejudiced defendant that it was denied a fair trial.

Initially, we find that the trial court ruled incorrectly when it refused to admit circumstantial evidence respecting the physical facts of the accident. As noted, defendant's theory was that plaintiff did not first attempt to cross the railroad tracks at the crossing, but instead approached the tracks at a point approximately 170 feet south of the crossing and there crawled under the train. If this theory were established, defendant's duty to plaintiff would be only the duty owed to a trespasser since under Michigan law one who crosses tracks not at an established crossing is a trespasser. (Northern Assurance Co. v. New York Central R. R. Co. (1935), 271 Mich. 569, 260 N.W. 763.) Also, it would suggest contributory negligence on plaintiff's part. On this theory, defendant attempted to present testimony by two witnesses who had investigated the snow-covered accident scene shortly after the accident. If permitted, they would have testified that the only footprints leading up to the location of the tracks where parts of plaintiff's feet and shoes were found were small footprints which had come down a spur track located approximately 170 feet from the crossing. The trial court allowed testimony that the parts were found approximately 170 feet from the crossing but disallowed testimony on the footprints and also rejected defendant's offers of proof on the subject. This ruling was improper.

Circumstantial evidence is competent evidence and may be used to contradict positive eyewitness testimony on a fact in a lawsuit. (See Oudshoorn v. Warsaw Trucking Co. (1976), 38 Ill.App.3d 920, 349 N.E.2d 648.) In this matter, plaintiff testified directly that he first approached the Watson Street crossing and that only after a wait did he walk to a point 60 to 70 feet south of the crossing and there attempt to crawl under the train. Defendant's witnesses' testimony, if it had been admitted, would have contradicted plaintiff's testimony. The weight to be given such testimony would be, of course, decided by the trier of fact and we assume that such matters as the time lapse between the accident and the investigations, the failure to specifically identify the prints as those belonging to plaintiff, and matters of credibility will all go into the question of acceptance of the testimony. Nonetheless, we believe that the testimony of these witnesses was crucial to defendant's theory of the case and the court erred in not admitting the testimony.

We find that the trial court improperly limited defense counsel's questioning of plaintiff at trial. On cross-examination of plaintiff, defense counsel sought responses to the following questions:

(1) whether, prior to the accident, plaintiff had been warned of it being dangerous to crawl under a train or crossing;

(2) whether plaintiff knew of anyone else who had crawled under a train and had been injured; and

(3) whether plaintiff knew that the train could run over him and sever his leg.

The court sustained plaintiff's attorney's objection to each of these questions, stating in effect that the questions were beyond the scope of direct examination. Defense counsel ended his cross-examination at this point but announced that he would save the questions until the time he called plaintiff under section 60 of the Civil Practice Act. (Ill.Rev.Stat.1969, ch. 110, par. 60.) Later, the trial court refused defense counsel's request to call plaintiff as a section 60 witness, stating that the questions which defense counsel wished to ask had nothing to do with the evidence in the case. Defense counsel then requested permission to read from a statement signed by plaintiff to impeach his credibility. The court refused this request for a number of reasons, including that the statement was not written by plaintiff.

Although the scope of cross-examination is limited to matters brought out on direct examination, this rule should not be given an overly technical or narrow interpretation which thwarts the search for truth in a lawsuit. (Marut v. Costello (1966), 34 Ill.2d 125, 214 N.E.2d 768.) The court's ruling in this case was an overly technical and narrow interpretation of the rule. One of the crucial questions in this case was whether plaintiff was contributorily negligent. On direct examination, plaintiff testified, in effect, that he had exercised due care before attempting to crawl under the train. Though he never testified to any prior warnings or any prior knowledge of the dangers of crawling under a train, questions concerning these matters were proper on cross-examination because they contradicted his testimony to the effect that he exercised due care. Under Michigan law, in order to establish contributory negligence on the part of a minor, it must be shown that he fell below a standard of care which an ordinary child of similar age, experience, judgment and physical and mental development can be expected to observe under similar circumstances. (See Armstrong v. City of Ann Arbor (1975), 58 Mich.App. 359, 227 N.W.2d 343.) Defendant's proposed questions would have elicited responses relevant to the question of plaintiff's experience.

The court's denial of defendant's request to call plaintiff as a section 60 witness also was improper. Under section 60, a party may call an adverse party as a witness and examine him as if he were under cross-examination. (Ill.Rev.Stat.1969, ch. 110, par. 60.) Use of this section is proper to bring out facts which a party might not otherwise have been able to bring out. (People v. Davis (1973), 11 Ill.App.3d 775, 298 N.E.2d 350.) In light of the trial court's improper restriction of defense counsel's cross-examination of plaintiff, he ought to have been afforded an opportunity to call plaintiff as a section 60 witness in order to ask him the questions refused on cross-examination. Also, assuming defense counsel could first lay the proper foundation, he ought to have been afforded an opportunity to use the statement to impeach plaintiff's credibility. (See Esderts v. Chicago, Rock Island & Pacific R. R. Co. (1966), 76 Ill.App.2d 210, 222 N.E.2d 117.)...

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