Henderson by Hudspeth v. Illinois Cent. Gulf R. Co.

• Decision Date: 19 May 1983
• Docket Number: Nos. 482-0254,482-0289,s. 482-0254
• Parties: , 70 Ill.Dec. 595 Heather HENDERSON, a minor, by her mother and next friend, Jill HUDSPETH; and Jill Hudspeth, individually, Plaintiffs-Appellants and Cross-Appellees, v. ILLINOIS CENTRAL GULF RAILROAD CO., a corporation, Defendant-Appellee and Cross-Appellant. Heather HENDERSON, a minor, by her mother and next friend, Jill HUDSPETH; and Jill Hudspeth, individually, Plaintiffs-Appellees, v. ILLINOIS CENTRAL GULF RAILROAD CO., a corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 942

449 N.E.2d 942

114 Ill.App.3d 754, 70 Ill.Dec. 595

Heather HENDERSON, a minor, by her mother and next friend, Jill HUDSPETH; and Jill Hudspeth, individually, Plaintiffs-Appellants and Cross-Appellees, v. ILLINOIS CENTRAL GULF RAILROAD CO., a corporation,

Defendant-Appellee and Cross-Appellant.

Heather HENDERSON, a minor, by her mother and next friend, Jill HUDSPETH; and Jill Hudspeth, individually, Plaintiffs-Appellees, v. ILLINOIS CENTRAL GULF RAILROAD CO., a corporation,

Defendant-Appellant.

Nos. 482-0254, 482-0289.

Appellate Court of Illinois Fourth District.

May 19, 1983.

David V. Dorris, Jerome Mirza and Associates, Ltd., Bloomington, for Heather Henderson.

George B. Gillespie, Gillespie, Cadigan & Gillespie, Springfield, for Ill. Cent. Gulf R. Co.

MILLS, Justice:

This appeal has two core issues.

One involves a discovery sanction.

The other, evidence of prior accidents.

We reverse and remand.

As this case involves no question of the sufficiency of the evidence establishing defendant's liability, an extended recitation of the facts is not necessary. Suffice it to say that on January 13, 1977, there was a collision between an automobile occupied by the plaintiffs (a mother and her two-year-old daughter) and one of the defendant's trains at a crossing in Hartsburg, Illinois. Both the mother and the daughter were injured.

They brought suit against the railroad and alleged, in part, that the railroad:

"Failed to provide adequate warning to the public of the approach of its trains although said crossing was an extra hazardous crossing due to the fact that the view of trains traveling upon the tracks of the defendant in a northerly direction by vehicles traveling in an easterly direction upon the County Road was obstructed, and further due to the fact that said crossing was heavily traveled by vehicular traffic; * * *."

At the trial, the plaintiffs presented evidence--including expert testimony--that the crossing was extra hazardous and required flashing signals for adequate protection. They also presented evidence of prior accidents at the crossing and the details of those accidents.

Objecting to the admission of the evidence concerning the prior accidents, the railroad argued that two of the accidents were dissimilar to the plaintiffs' accident. The trial court overruled the railroad's objection and allowed the evidence on the issue of notice to the railroad of the hazardous nature of the crossing.

In its defense, the railroad called its own expert who testified that the crossing was adequately protected. However, the railroad was denied, as a sanction for a discovery violation, the opportunity to call a second expert witness, Bernard Morris, an expert from the Illinois Commerce Commission.

The jury returned verdicts of $87,500 for the mother and $45,000 for the daughter. The railroad filed a post-trial motion alleging numerous trial errors and seeking a remittitur. The court reduced the verdict for the daughter to $22,500, but otherwise denied the railroad's requested relief. Plaintiffs appealed from the remittitur and the railroad cross-appealed the denial of its post-trial motion. Because of our decision on two of the issues raised on the cross-appeal, we need not address the others, including the question of remittitur.

I

First, we hold that it was error to exclude the testimony of Bernard Morris.

There is no duty to supplement answers to interrogatories which are correct and complete when made. (Strope v. Chicago Transit Authority (1979), 71 Ill.App.3d 987, 28 Ill.Dec. 1, 389 N.E.2d 1374.) All of the evidence below indicated that the railroad did not decide to call Morris as a witness until after plaintiffs' September 4, 1981, request to supplement an interrogatory under Supreme Court Rule 213(e) (87 Ill.2d R. 213(e)) and that the railroad promptly and completely replied to the January 22, 1982, 213(e) request. While the railroad may have delayed the decision to make Morris a witness, this is not a discovery violation. Because a violation is a condition precedent to the imposition of a sanction, the railroad is entitled to a new trial where Morris will be allowed to testify. Clay v. McCarthy (1979), 73 Ill.App.3d 462, 30 Ill.Dec. 38, 392 N.E.2d 693.

II

Second, we find that it was also error to allow the plaintiffs to present details of the prior accidents that were dissimilar to the accident in this case.

The general rule regarding the admissibility of prior accidents was summarized by the court in Ray v. Cock Robin, Inc. (1973), 10 Ill.App.3d 276, 282, 293 N.E.2d 483, 487:

"The law is well settled that evidence of prior accidents, occurring at the same place or with the same instrumentality, is competent, not for the purpose of showing independent acts of negligence, but for the limited purposes of showing that the common cause of such accidents was the unsafe condition or thing, and that frequency of such accidents tends to show knowledge of such condition."

(See also Moore v. Bloomington, Decatur & Champaign R.R. Co. (1920), 295 Ill. 63, 128 N.E. 721; Smith v. City of Rock Island (1959), 22 Ill.App.2d 389, 161 N.E.2d 369.) This rule has long been accepted in Illinois (see City of Taylorville v. Stafford (1902), 196 Ill. 288, 63 N.E. 624; City of Bloomington v. Legg (1894), 151 Ill. 9, 37 N.E. 696), and is also accepted in the overwhelming majority of foreign jurisdictions[114 Ill.App.3d 758] --both state and Federal. See Simon v. Town of Kennebunkport (Sup.Ct.Me.1980), 417 A.2d 982, and cases cited therein.

What foundation must be laid to introduce evidence of prior accidents and whether details of those accidents may be introduced depend upon the purpose for which the evidence is being offered. If the evidence is being offered to show the existence of a particular danger or hazard, then a foundation must be laid establishing the similarity between the prior accidents and the present accident. The determining factor here is relevancy. Evidence of prior accidents is only admissible if it is relevant to the proponent's case. (Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill.2d 127, 23 Ill.Dec. 58, 383 N.E.2d 929.) Evidence of prior dissimilar accidents is not relevant to the issue of whether a particular obstruction or hazard contributed to the present accident. Only similar accidents are relevant to show the existence of a particular danger. See Newton v. Meissner (1979), 76 Ill.App.3d 479, 31 Ill.Dec. 864, 394 N.E.2d 1241; Phillips v. Shell Oil Co. (1973), 13 Ill.App.3d 512, 300 N.E.2d 771.

Furthermore, when the proponent is offering the evidence to show the existence of a particular danger, he may also introduce details of the prior accidents. This is because details are relevant to the issue of whether a particular danger existed.

If the evidence of prior accidents is being offered only to show the defendant's notice of the generally hazardous nature of the accident site, then the proponent does not have to establish a foundation showing the similarity between the prior accidents and the present accident. (First National Bank v. Illinois Central Gulf R.R. Co. (1978), 62 Ill.App.3d 36, 19 Ill.Dec. 454, 378 N.E.2d 1329.) Evidence of dissimilar prior accidents is relevant to the issue of whether the defendant knew the accident site was generally hazardous. See Warshaw v. Rockresorts, Inc. (1977), 57 Haw. 645, 562 P.2d 428; Hilts v. County of Solano (Cal.Ct.App.1968), 265 Cal.App.2d 161, 71 Cal.Rptr. 275; ...