Bradfield v. Illinois Cent. Gulf R. Co.

• Decision Date: 20 February 1987
• Docket Number: No. 62509,62509
• Citation: 115 Ill.2d 471,505 N.E.2d 331,106 Ill.Dec. 25
• Parties: , 106 Ill.Dec. 25 Winifred BRADFIELD, Adm'r, Appellee, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Appellant.
• Court: Illinois Supreme Court

Page 331

505 N.E.2d 331

115 Ill.2d 471, 106 Ill.Dec. 25

Winifred BRADFIELD, Adm'r, Appellee, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Appellant.

No. 62509.

Supreme Court of Illinois.

Feb. 20, 1987.

Rehearing Denied March 30, 1987.

Gundlach, Lee, Eggmann, Boyle & Roessler, Belleville, for appellant Illinois Central Gulf R. Co.; Richard E. Boyle, Charles L. Joley, of counsel.

Jerome Mirza and Associates, Ltd., Bloomington, for appellee.

Justice GOLDENHERSH delivered the opinion of the court:

Defendant, Illinois Central Gulf Railroad Company, appealed from the judgment of the circuit court of Madison County entered upon a jury verdict in the amount of $175,000 in favor of plaintiff, Winifred Bradfield, administrator of the estate of Richard Bradfield, deceased. The appellate court affirmed (137 Ill.App.3d 19, 91 Ill.Dec. 806, 484 N.E.2d 365), and we allowed defendant's petition for leave to appeal (103 Ill.2d R. 315(a)). The facts are adequately stated in the opinion of the appellate court and will be reviewed here only to the extent necessary to discuss the issues.

The testimony shows that on January 23, 1978, plaintiff's decedent was traveling east on a road perpendicular to defendant's railway, approximately one-quarter mile south of the town of Lostant, when his vehicle was struck at the crossing by defendant's train. Plaintiff's decedent was killed in the crash. The crossing was protected only by a railroad "crossbuck." The train involved in the collision consisted of a snow plow, two engines and a caboose. Although the weather at the time of the occurrence was clear and the sun was shining, the train had been used to clear snow that had drifted onto the tracks. A member of the crew testified that they had plowed a drift approximately two-thirds of a mile south of the crossing where the collision occurred. He testified that while plowing snow in this manner it was necessary to frequently sound the whistle in order to prevent its clogging with snow. Two crew members testified that from the time the northbound train passed a whistle mark one-quarter of a mile south of the crossing, until the collision occurred at the crossing, they rang the bell and sounded the whistle.

The testimony of plaintiff, decedent's widow, and that of the two crew members was contradictory. The crew testified they followed the required crossing-whistle pattern of two long blasts, a short blast, and another long blast. Plaintiff testified that she heard the train coming down the tracks and a "frantic" blow of the whistle immediately before the crash. The circuit court, over defendant's objection, admitted the testimony of plaintiff and Jeffrey Bradfield, son of plaintiff and the decedent, that on other occasions, prior to the occurrence in question, crews operating defendant's trains had failed to blow a whistle or horn when approaching the crossing. These witnesses testified that the crews did not sound a whistle until after they had passed the crossing and were entering the town of Lostant.

This appeal presents the sole question whether the circuit court erred in admitting the testimony concerning defendant's "habit" of not blowing the whistle until the train had passed over the crossing and was entering the town of Lostant. The appellate court, citing Gardner v. Geraghty (1981), 98 Ill.App.3d 10, 15, 53 Ill.Dec. 517, 423 N.E.2d 1321, acknowledged that the current rule regarding "habit" testimony was that it was permitted in wrongful death cases where there were no eyewitnesses to the occurrence. (See also Plank v. Holman (1970), 46 Ill.2d 465, 264 N.E.2d 12.) The appellate court, however, noting that the emerging view as reflected by the Federal Rules of Evidence (Fed.R.Evid. 406), was that habit evidence was always admissible to prove the conduct of a person or business organization, rejected the eyewitness requirement and followed Rule 406. Rule 406 of the Federal Rules of Evidence provides:

"Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice." Fed.R.Evid. 406.

Defendant contends that the appellate court erred in not following this court's decision in Plank v. Holman (1970), 46 Ill.2d 465, 264 N.E.2d 12. Plank, it argues, reaffirmed this jurisdiction's long-standing rule that habit testimony is not admissible when eyewitness testimony is available. They argue that, even if this court were to adopt Federal Rule of Evidence 406, the testimony was insufficient to prove defendant's habit of failing to properly sound the whistle. Citing Reyes v. Missouri Pacific R.R. Co. (5th Cir.1979), 589 F.2d 791, and Wilson v. Volkswagen of America, Inc. (4th Cir.1977), 561 F.2d 494, defendant argues that evidence of habit is not admissible unless a foundation is laid showing an adequate sampling and uniformity of response. It contends that because the sole issue before the jury concerning defendant's negligence was whether the whistle was properly sounded at the time of the collision, plaintiff's "vague" testimony that she heard a "frantic whistle and a crash" was insufficient to prove that the whistle was not sounded for one-quarter mile before the crossing. Under these circumstances, defendant argues that the appellate court erred in holding that if such testimony was error, the error was harmless.

Upon examination of the record we conclude that defendant did not preserve for review, and we should not decide on the grounds presently urged by defendant, the question whether the evidence was erroneously admitted. The transcript shows that in plaintiff's direct examination, the following ensued:

"Q. In the past when railroad trains have gone over that crossing, have they blown their whistle for that crossing?"

MR. BROWN: Show my objection. I don't think that has any relevance in this case.

THE COURT: Overruled."

During the direct examination of Jeffrey Bradfield, the following ensued:

"Q. * * * Do you remember when it was that you moved in this house in Lostant? How long had you lived there before the collision occurred?

A. A couple of years. I'm not really sure. A couple of years.

Q. Well, I want to ask you a question about that over the period of time that you were there. When the trains were going on that track did they whistle for that railroad crossing?

A. No.

MR. BROWN: Your Honor, I show my objection for the reason that it has no relevancy to this case.

THE COURT: Objection overruled."

The only reference to the evidence contained in defendant's post-trial motion is the following:

"1. The Court erred when it;

* * *

* * *

(B) Permitted the plaintiff to introduce over Defendant's objection the testimony of Winifred Bradfield and Jeffrey Bradfield that on other occasions prior to the occurrence in question, that other train crews of the Illinois Central Gulf had failed to sound a whistle or horn when approaching the crossing in question."

The rule is well established that specific objections to evidence must be made in all instances where the objection, if specifically pointed out, might be obviated or remedied. "Such objection must be specific so as to afford the adverse party an opportunity to make correction." Johnson v. Bennett (1946), 395 Ill. 389, 398, 69 N.E.2d 899.

The objection was only to the relevance of the evidence. It has long been established that habit testimony is relevant and the only limitations imposed on its admission have been on the basis of necessity. (Hardware State Bank v. Cotner (1973), 55 Ill.2d 240, 302 N.E.2d 257; Plank v. Holman (1970), 46 Ill.2d 465, 264 N.E.2d 12; McElroy v. Force (1967), 38 Ill.2d 528, 232 N.E.2d 708.) Evidence of habit and custom of an employee of an express company was held properly admitted in American Express Co. v. Haggard (1865), 37 Ill. 465, and such testimony has been admitted since that time without proof of necessity, thus making it questionable whether the cases cited (Hardware State Bank, Plank and McElroy ) are in point. Defendant does not now contend that the evidence was not relevant and the objections shown in the transcript and in the post-trial motion raise only the issue of relevance. Defendant made no objection based on either the alleged availability of eyewitnesses or the lack of proper foundation, and objection on those grounds was therefore waived. People v. Williams (1983), 97 Ill.2d 252, 73 Ill.Dec. 360, 454 N.E.2d 220; Town of Cicero v. Industrial Com. (1949), 404 Ill. 487, 495, 89 N.E.2d 354.

For the reasons stated, the judgment is affirmed.

Judgment affirmed.

Justice RYAN, dissenting:

I must dissent from the majority opinion because I find that the defendant's objection to the relevancy of the habit and custom testimony offered was proper and sufficient to preserve for review the question as to the propriety of the admission of such testimony. Therefore, this court should have decided the merits of that question. On the merits I would find that the evidence of habit or custom was erroneously admitted and, for that reason, the verdict should be reversed.

The opinion holds that habit testimony has been held by this court to be relevant. Therefore, according to the opinion, the defendant's objection to the evidence on the grounds of relevancy was not well taken. Since no other objection to this evidence was stated, the opinion holds that the question of the admissibility of this evidence for any other reason was waived.

Relevancy has been defined as the tendency of the evidence to establish a material proposition. (McCormick, Evidence sec. 185, at 435 (2d ed. 1972).) However, although, logically, certain evidence, in a sense, may tend to establish a certain fact, it may lack legal relevancy because of its slight probative value or the dangers that would accompany the...