author: JUSTICE McLAREN

text:
    KATHY J. BRENNAN, Plaintiff-Appellant, v. WISCONSIN CENTRAL LIMITED et al., Defendants-Appellees.
    Second District
    No. 2—91—0484
    Opinion filed April 23, 1992.

      Stephen M. Passen and Allen C. Schwartz, both of Stephen M. Passen, Ltd., of Chicago (Jay Paul Deratany, of counsel), for appellant.
    Patrick J. Larkin, of Oppenheimer, Wolfe & Donnelly, of Chicago (James A. Fletcher, of counsel), for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

This appeal arises out of a collision between an automobile operated by Kathy J. Brennan, plaintiff, and a freight train owned by Wisconsin Central Limited (WCL), an Illinois corporation, in unincorporated Antioch Township, Illinois. Plaintiff filed a three-count complaint for personal injuries against WCL, its employees David A. Koepke and Ronald G. Callaway, and the North Shore Improvement Association alleging that defendants’ negligence was the proximate cause of her injuries. After the close of the evidence, the court granted a directed verdict in favor of defendants on several counts of plaintiff’s complaint, and the jury returned a verdict in favor of defendants on all remaining counts. Plaintiff’s post-trial motion for a judgment notwithstanding the verdict or alternatively for a new trial was denied, and plaintiff appealed. We affirm in part, reverse in part, and remand.

The collision occurred where WCL’s north/south mainline track intersects with Lake Shore Drive in unincorporated Antioch Township. Lake Shore Drive is an east/west two-lane, black-topped road which crosses the track at a 90 degree angle and comes to a dead end within a subdivision east of the crossing. The crossing is equipped with one reflectorized crossbuck on each side of the track and no active warning devices. Approximately 50 feet east of the track, Lake Shore Drive intersects with a gravel road known as L Street, which runs in a northeasterly/southwesterly direction.

The record reveals that on January 9, 1988, at approximately 5:20 p.m., it was dusk, the weather was clear, and there was nearly one foot of snow on the ground. Kathy Brennan was traveling westbound along Lake Shore Drive, and the WCL train was approaching the crossing from the south at approximately 35 miles per hour. As the vehicle approached the crossing, both plaintiff and her passenger, Pamela Kegerris, testified that they looked both ways along the track but did not see or hear anything until they were directly on the track and the headlight of the train was shining through the driver’s side window. At this point, train number T41, consisting of 2 locomotives and 65 freight cars, collided with plaintiff’s vehicle.

At the time of the accident, the engine was operating in a fashion known as long end forward, meaning that the engineer and conductor were positioned in the rear of the engine which leads the train. David Koepke, the conductor, testified that he first observed Brennan’s automobile about a quarter of a mile from the crossing when her car slowed at L Street and turned onto Lake Shore Drive. When Brennan’s automobile passed the crossbuck sign, Koepke realized it was not going to stop and directed Callaway, the locomotive engineer, to apply the emergency brake. Both Callaway and Koepke testified that the warning bell and horn were sounded in the required fashion prior to the collision and that the headlight was functioning on its brightest setting.

Plaintiff’s complaint alleged several acts of negligence by the various defendants. However, at the close of the evidence, plaintiff was allowed to orally amend her complaint to conform to the evidence. The complaint, as amended, asserted that WCL, Koepke and Calla-way were negligent in:

(1) constructing and maintaining the approach to the crossing at an excessive grade;
(2) failing to remove brush, shrubs or trees located on the railroad right-of-way within 500 feet of the Lake Shore Drive grade crossing which materially impaired the view that westbound motorists had of approaching trains;
(3) failing to provide adequate warnings at the Lake Shore Drive crossing such as signs, flashing lights, gates or guards;
(4) failing to stop or apply the brakes in a timely manner;
(5) failing to sound the bell, horn or otherwise give timely warning;
(6) operating the train at a speed greater than was reasonable and proper given the conditions existing at the Lake Shore Drive crossing;
(7) failing to maintain a proper and sufficient lookout;
(8) failing to run the engine short end forward; and
(9) failing to operate and manage the train with reasonable care and caution having due regard to the conditions existing at the crossing.

After the close of the evidence, the court granted a directed verdict for Koepke on all of the above-mentioned claims and as to WCL and Callaway on all claims except those based on the alleged failure to sound the horn and to remove trees and brush. After submitting the remaining claims to the jury, a verdict was returned in favor of defendants, and judgment was entered on the verdict. Plaintiff seeks review of the trial court’s denial of her post-trial motion for a judgment n.o.v. or, alternatively, for a new trial.

Judgments n.o.v. should be entered or verdicts directed only when all of the evidence, viewed most favorably to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) However, reversal of the denial of a motion for a new trial on appeal requires a showing that the trial court abused its discretion. Tedrowe v. Burlington Northern, Inc. (1987), 158 Ill. App. 3d 438, 442.

I

The first contention in plaintiff’s post-trial motion is that the trial court erred in granting defendant’s motion in limine which limited proof of WCL’s alleged negligence in failing to erect additional warning devices to standards of the Illinois Commerce Commission (ICC). This ruling was based on the trial court’s finding that the Federal Railroad Safety Act (FRSA) (45 U.S.C. §421 et seq. (1986)) expressly preempts State law concerning the adequacy of existing crossing signals. We will first address the court’s ruling that plaintiff’s common-law claim that WCL was negligent in failing to install additional warning devices at the subject crossing was preempted by Federal law.

The Supreme Court has indicated that there are three circumstances in which the supremacy clause of the United States Constitution preempts State law. First, Congress can explicitly define the extent to which its enactment preempts State law. In this situation, the courts will attempt to narrowly tailor the scope of preemption to match congressional intent. Second, a congressional intent to exclusively occupy a field of regulation may be inferred when the regulatory scheme is so comprehensive that there is no room for supplementary State laws. Third, State law is preempted to the extent that it actually conflicts with Federal law, thereby making compliance with both State and Federal requirements impossible. (English v. General Electric Co. (1990), 496 U.S. 72, 79, 110 L. Ed. 2d 65, 74, 110 S. Ct. 2270, 2275.) Section 434 of the FRSA is helpful in specifically describing its preemptive effect. It states that the “standards relating to railroad safety shall be nationally uniform to the extent practicable.” However, it also contains the following savings clause:

“A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary [of Transportation] has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce.” 45 U.S.C. §434 (1986).

With the adoption of the FRSA, Congress required the Secretary of Transportation to study and develop solutions to problems associated with railroad grade crossings. (45 U.S.C. §433 (1986).) Under the Highway Safety Act (23 U.S.C. §§401 through 404 (1986)), the Secretary is responsible for developing uniform standards and to approve State-designed highway safety programs as a condition precedent to the State’s receipt of Federal highway funds. Pursuant to its statutory responsibility, the Secretary of Transportation adopted the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD). (23 C.F.R. §§646.214(b)(l), 655.603 (1991).) However, the MUTCD contains the following language which delegates the responsibility for selecting warning devices to local agencies with jurisdiction over a given rail crossing:

“The determination of need and selection of devices at a grade crossing is made by the public agency with jurisdictional authority. Subject to such determination and selection, the design, installation and operation shall be in accordance with the national standards contained herein.” (Manual on Uniform Traffic Control Devices for Streets and Highways §8A — 1 (1988).)

It further states:

“Due to the large number of significant variables which must be considered there is no single standard system of active traffic control devices universally applicable for grade crossings. Based on an engineering and traffic investigation, a determination is made whether any active traffic control system is required at a crossing and, if so, what type is appropriate. Before a new or modified grade crossing traffic control system is installed, approval is required from the appropriate agency within a given State.” Manual on Uniform Traffic Control Devices for Streets and Highways §8D — 1 (1988).

In turn, Illinois law authorizes and directs the ICC as follows:

“The Commission shall have power, upon its own motion, or upon complaint, and after having made proper investigation, to require the installation of adequate and appropriate luminous reflective warning signs, luminous flashing signals, crossing gates illuminated at night or other protective devices in order to promote and safeguard the health and safety of the public. Luminous flashing signal or crossing gate devices installed at grade crossings, which have been approved by the Commission, shall be deemed adequate and appropriate. The Commission shall have authority to determine the number, type and location of such signs, signals, gates or other protective devices which, however, shall conform as near as may be with generally recognized national standards ***.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 95V2, par. 18c-7401.

Nevertheless, the extent to which the FRSA preempts State railroad safety laws has been the subject of much litigation. (Smith v. Norfolk & Western Ry. Co. (N.D. Ind. 1991), 776 F. Supp. 1335 (partial summary judgment granted because the local agency determined what safety devices were required prior to the plaintiff’s accident); Anderson v. Chicago Central & Pacific R.R. Co. (N.D. Ill. 1991), 771 F. Supp. 227 (common-law negligence action was not preempted because the record lacked evidence that the ICC determined the existing warnings were appropriate); Southern Pacific Transportation Co. v. Maga Trucking Co. (D. Nev. 1991), 758 F. Supp. 608 (although the agency recommended the crossing be upgraded, preemption did not occur because the improvements had not been made at the time of the accident); Taylor v. St. Louis Southwestern Ry. Co. (D. Kan. 1990), 746 F. Supp. 50 (denying a motion in limine based on a finding that the railroad’s common-law duty was not preempted by the FRSA).) There is even a split of authority in the Federal Courts of Appeal. In Marshall v. Burlington Northern, Inc. (9th Cir. 1983), 720 F.2d 1149, the Ninth Circuit found that, based on the Federal regulatory scheme and rules promulgated by the Secretary of Transportation, a common-law duty to provide adequate warnings at railroad crossings was not subject to preemption until the responsible State agency determined the appropriate type of warning device to be installed. Contrary to Marshall, however, the Eighth Circuit ruled that a railroad may be liable in common-law negligence even if the local agency approved the warning devices at the subject crossing. (Karl v. Burlington Northern R.R. Co. (8th Cir. 1989), 880 F.2d 68.) Although a recent decision rejected Marshall’s implication that a railroad would be insulated from liability once a crossing was upgraded by the State, it held that State common-law liability is not abrogated by Federal provisions in the absence of an affirmative decision by the applicable State agency on the adequacy of existing warning devices. Easterwood v. C S X Transportation, Inc. (11th Cir. 1991), 933 F.2d 1548, 1556.

Defendants contend that a State’s common-law duty to provide a safe crossing was preempted according to the express terms of the FRSA when the Secretary adopted the MUTCD as the national standard. (See Hatfield v. Burlington Northern R.R. Co. (10th Cir. 1992), 958 F.2d 320; Armijo v. Atchison, Topeka & Santa Fe Ry. Co. (D. N.M. 1990), 754 F. Supp. 1526, 1531.) Although the MUTCD contains standards concerning the location, size and appearance of the various warning devices, it lacks guidelines designating the type of active devices appropriate at crossings having particular features. Instead, it states that “there is no single standard system of active control devices universally applicable for grade crossings” and delegates the responsibility for selecting appropriate warning devices to State agencies with jurisdictional authority. Our review of the record coupled with our own diligent research reveals that neither Congress nor the Illinois legislature has enacted a comprehensive set of regulations encompassing the types of warning devices required at crossings having particular features.

In Illinois, safety guidelines for railroad tracks, facilities and equipment are set forth in section 7401 of the Illinois Commercial Transportation Law. (Ill. Rev. Stat. 1989, ch. 95V2, par. 18c — 7401.) Its legislative history reveals an intent to eliminate issues concerning the adequacy of railroad crossings only after the ICC has investigated and ordered the installation of a particular warning device. (Hunter v. Chicago & North Western Transportation Co. (1990), 200 Ill. App. 3d 458, 465-66, citing 82d Ill. Gen. Assem., House Proceedings, April 22, 1982, at 114-23.) This procedure is consistent with applicable case law discussing FRSA’s preemptive effect of State safety guidelines. See Easterwood, 933 F.2d at 1556; Anderson, 771 F. Supp. at 228; Taylor, 746 F. Supp. at 55.

The record in this case reveals no evidence that the ICC investigated the Lake Shore Drive crossing and made a determination under either the MUTCD or the applicable statutory provision (Ill. Rev. Stat. 1989, ch. 95V2, par. 18c — 7401) concerning the adequacy of existing signals. As previously stated by Illinois courts, “the fact that the Illinois Commerce Commission has not ordered a certain warning or signaling device at a crossing does not thereby relieve a railroad of negligence in not providing such a device.” (Hunter, 200 Ill. App. 3d at 466; Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1970), 121 Ill. App. 2d 445, 456, affd (1971), 49 Ill. 2d 118.) Section 434 of the FRSA allows the States to “adopt or continue in force an additional or more stringent law *** relating to railroad safety” when necessary to eliminating a safety hazard as long as it is not incompatible with Federal law. (45 U.S.C. §434 (1986).) This language exhibits that the Federal government did not intend to preempt the field of railroad safety by adopting a manual which is completely devoid of relevant regulations. Furthermore, preempting the field of railroad safety by adopting the MUTCD, which delegates all responsibility for determining the adequacy of warning devices to the applicable State agency, would lead to the absurd result that a statute designed to promote railroad safety would effectually immunize a railroad from liability with respect to safe crossings in the absence of affirmative action by the State. This result is antagonistic to both the purpose of the FRSA and its specific language concerning the extent of preemption. (45 U.S.C. §434 (1986).) Accordingly, we find that the railroad’s common-law duty to provide a safe crossing has not been preempted by the terms of the FRSA under the rationale of either Marshall, Easterwood, or Karl.

Because all railroad crossings present a danger to motorists, not every peril will impose a duty on the railroad. (Basset v. Burlington Northern R.R. Co. (1985), 131 Ill. App. 3d 807, 812; Merchants, 121 Ill. App. 2d at 455.) Illinois courts have held that the railroad’s duty to provide additional warnings arises when “special circumstances,” also defined as “extrahazardous conditions,” are present. (Dunn v. Baltimore & Ohio R.R. Co. (1989), 127 Ill. 2d 350, 357; Basset, 131 Ill. App. 3d at 812; Puckett v. Soo Line R.R. Co. (7th Cir. 1990), 897 F.2d 1423, 1427 (applying Illinois law).) Because there is no fixed rule as to what constitutes special circumstances, “[e]ach case must be decided independently by the jury, whose task it is to determine, from the circumstances in existence at the particular crossing at the particular time the vehicle approaches, whether the crossing is extrahazardous and the amount of protection required.” (Basset, 131 Ill. App. 3d at 812; see also Merchants, 121 Ill. App. 2d at 456.) Several factors the jury considers in assessing the questions of hazard and protection are population, traffic, physical obstructions to vision, volume and speed of vehicular and train traffic, track arrangement and elevation, width of the crossing, intersecting driveways and roadways, character of the surrounding neighborhood, and the effect to which confusion, incident to the railroad or other business in the area, would have on the sight or hearing of ordinary signals. Hunter, 200 Ill. App. 3d at 466; Basset, 131 Ill. App. 3d at 812; First National Bank v. Illinois Central Gulf R.R. Co. (1978), 62 Ill. App. 3d 36, 42.

Prior to trial, however, the court entered the following order pursuant to defendants’ motion in limine:

“The Motion in Limine — Evidence That The Crossing Should Have Been Equipped With Flashing Signals or Other Warning Devices is granted to the extent that plaintiff’s proof and argument concerning her claim that additional warning devices should have been installed at the Lake Shore Drive crossing shall be limited to proof and argument that such additional warning devices were required under the standard applied by the Elinois Commerce Commission; otherwise, said motion is denied.”

Because neither party presented evidence of ICC proceedings which determined the adequacy of the existing warning devices at the Lake Shore Drive crossing at trial, the court effectually directed the jury to sit in the position of the ICC and determine whether additional warning devices were warranted. The court stated as follows: “We are going to say to the jury these are the standards which are established. Under those standards, was this sign the sign that’s required.”

In an effort to prove the applicable standards, the defense presented a pamphlet entitled “Recommended Procedures for the Initiation and Execution of the Stipulated Agreement.” The pamphlet specifies procedures to be followed in ICC proceedings to alter a crossing without a hearing when the interested parties agree on the form of improvement. However, the court conclusively accepted this pamphlet as the applicable legal standard governing warning devices at crossings. Consequently, when plaintiff attempted to prove the railroad breached common-law standards through the testimony of Robert Lippman, a civil engineer and land surveyor who investigated the subject crossing, the court barred plaintiff from producing any evidence or testimony it deemed outside the standards set forth in the pamphlet. As a result, all portions of Lippman’s testimony concerning his opinion that additional warning devices were required under a common-law, reasonable-person standard were stricken.

Because we have determined that the railroad’s common-law duty to provide a safe crossing has not been preempted, the pamphlet submitted by defendant was improperly admitted for the purpose of determining the standard of care on the issue of the adequacy of warning devices. We emphasize, however, that this holding does not preclude the admissibility of the pamphlet for another purpose. “[E]vidence of standards may be relevant and admissible even though the standards have not been imposed by statute or promulgated by a regulatory body and therefore do not have the force of law.” Ruffiner v. Material Service Corp. (1987), 116 Ill. 2d 53, 58, citing Merchants, 49 Ill. 2d at 125 (where a pamphlet containing standards concerning grade crossing protection was admissible because it did not conclusively determine the standard of care, and the jury was not instructed that it did); see also Paulison v. Chicago, Milwaukee, St. Paul & Pacific R.R., Inc. (1979), 74 Ill. App. 3d 282, 288.

We further determine that the court erred in striking Lippman’s testimony concerning the adequacy of existing warning devices at the subject crossing. Because Lippman stated in his deposition that he did not consider ICC standards in his investigation, the court struck his testimony based on a finding that the disclosure requirements of Supreme Court Rule 220 (134 Ill. 2d R. 220) mandated this result. Because Lippman is not a legal expert, he is not qualified to testify as to the legal applicability or legal substance of ICC standards. However, considering our prior ruling that the FRSA did not preempt WCL’s common-law duty to provide a safe crossing, Lippman was entitled to render an opinion of the Lake Shore Drive crossing when couched in terms of common-law standards, regardless of his knowledge of or reliance on the standards set forth in the pamphlet.

Having determined that Lippman’s testimony should have been admitted, we conclude by determining that the trial court erred in directing a verdict on the issue of the adequacy of the warning devices at the crossing. A motion for a directed verdict should be granted only when all of the evidence, viewed favorably to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick, 37 Ill. 2d at 510.) In this case, the court entered the directed verdict on the basis that there was insufficient evidence that the crossing should have been upgraded under the standards set forth in the improperly considered pamphlet entitled Recommended Procedures for the Initiation and Execution of the Stipulated Agreement. Additionally, because we have ruled that the FRSA has not preempted the railroad’s common-law duty to provide a safe crossing, the standards set forth in the pamphlet are not probative of whether the crossing should have been upgraded. If Lippman’s opinion concerning the adequacy of the crossing was not stricken, the jury could have determined that WCL breached its common-law duty to provide a safe crossing. Therefore, the court erred in directing a verdict on the adequacy of the warning devices, and plaintiff is entitled to a new trial on this issue.

II

Next, plaintiff contends that the court erred in directing a verdict in favor of WCL on the issue of its alleged negligence in maintaining the crossing at an excessive grade. Pursuant to defendant’s motion in limine, the court found that WCL’s duty to maintain the grade was confined to an area of two feet from the nearest rail or six feet from the center line of the track. Consequently, the court limited proof of WCL’s negligence to this area. This ruling was based on section 7401 of the Illinois Commercial Transportation Law (Ill. Rev. Stat. 1987, ch. 95V2, par. 18c — 7401) and ICC rule 204 (92 Ill. A dm. Code §1535.204 (1985)). The portion of section 7401 discussing the grade of approaches to crossings states:

“[Ujnless otherwise ordered by the Commission, [every rail carrier operating in the State of Illinois] shall construct and maintain the approaches [of every highway crossing over its tracks] at a grade not more than 5% within the right of way for a distance of not less than 6 feet on each side of the centerline of such tracks; provided, that the grades at the approaches may be maintained in excess of 5% only when authorized by the Commission.” (Ill. Rev. Stat. 1989, ch. 95V2, par. 18c — 7401.)

However, ICC rule 204 also contains the following requirements for approaches to grade crossings:

“Unless the Commission otherwise specifically orders, the grade line of highway approaches to grade crossings hereafter established or substantially reconstructed shall be as follows: From the outer rail of the outermost track coincident with a tangent to the tops of the rails for about 24 inches, thence for a distance of 25 feet ascending or descending at a grade which shall not deviate more than 1% from said tangent, thence to the right-of-way line (and as far beyond as the Commission’s control may extend in any case) at a grade not to exceed 5%.” 92 Ill. Adm. Code §1535.204 (1985).

At trial, plaintiff’s expert, Robert Lippman, testified that the grade of the crossing when measured within the area designated by the court was 11V2%. In his opinion, the crossing constituted a hazard, since “text books, and the ICC rules and regulations state that *** grades should be less than 5 per cent at railroad crossings.” At the close of all the evidence, the court directed a verdict in favor of WCL on this issue on the basis that the evidence could not support a finding by a reasonable jury that the grade at the Lake Shore Drive crossing was the proximate cause of plaintiff’s injuries. We agree.

The record does not contain any evidence other than Lippman’s testimony to indicate that the grade of the crossing contributed to plaintiff’s inability to see the oncoming train and stop. Even if the grade of the crossing did not comply with the applicable statute and ICC regulations, a finding that the grade affected this occurrence, when based on the evidence presented, would be nothing more than speculation. Violation of a statute designed to protect human life or property is prima facie evidence of negligence. In order to recover, however, a plaintiff must still prove that the violation proximately caused his injury. (Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 219-20.) A search of the record reveals no offer of proof by plaintiff indicating evidence which would prove that the grade of the subject crossing was the proximate cause of the accident. Accordingly, the court’s ruling on the motion in limine did not affect the ruling on the directed verdict. Applying the Pedrick standard (Pedrick, 37 Ill. 2d at 510), we find that the court did not err in directing a verdict for WCL on the issue of negligence in maintaining an excessive grade.

Plaintiff also claims that she presented sufficient evidence to warrant a jury verdict on the issue of Callaway and Koepke’s negligence in failing to maintain a proper and sufficient lookout. This allegation encompasses her claim that defendants were negligent in operating the train long end forward. Although Callaway’s view of the track was limited to the west side when the train was operated in this fashion, Koepke had a full view of the east side. It is undisputed that the locomotive is designed to be run in either direction and that there are windows on both ends of the cab to allow crew members to observe the track. Although the record reflects that the view is better when the engine is run short end forward, it lacks evidence that the view is inadequate when run long end forward. Such evidence is insufficient to establish that Koepke and/or Callaway breached their duty to maintain a proper lookout.

Moreover, the essential question in determining if defendants kept a proper lookout is whether they failed to do that which a reasonably prudent person would under the circumstances. (Lee v. Grand Trunk Western R.R. Co. (1986), 143 Ill. App. 3d 500, 511.) It is undisputed that Koepke observed plaintiffs vehicle traveling on L Street when the train was a quarter of a mile from the crossing and that he continued to watch the vehicle proceed slowly toward the crossing. Although Koepke did not alert Callaway of the motorist until her car passed the crossbuck, his actions did not constitute a breach of any duty. While Illinois law requires railroad crews to keep a proper lookout for individuals in the vicinity of tracks, it does not require emergency stops whenever railroad personnel observe an individual near the tracks. (Puckett, 897 F.2d at 1425.) A person traversing a railroad crossing has a duty to look and listen for an approaching train (Hamilton v. Atchison, Topeka & Santa Fe Ry. Co. (1988), 175 Ill. App. 3d 758, 760), notwithstanding a statutory duty to “exercise due care and caution *** [and] stop within 50 feet but not less than 15 feet from the nearest rail of the railroad” in circumstances when an approaching train creates an immediate hazard. (Ill. Rev. Stat. 1989, ch. 95^2, par. 11 — 1201.) Therefore, Koepke was under no duty to act until plaintiff passed the crossbuck. Accordingly, we find that the trial court did not err in directing a verdict on the issue of Koepke’s and/ or Callaway’s negligence in failing to maintain a proper lookout.

Next, plaintiff contends that the court erred in directing a verdict in favor of Koepke on the issue of his alleged failure to sound the train’s warning whistle. Because Koepke acted as conductor on the train, the court ruled that he had no duty to sound the horn, since only Callaway, the engineer, had access to the controls for these devices. We need not determine whether this ruling was error, because the trial court submitted the claim of failure to sound the horn against WCL and Callaway to the jury, which returned a verdict in favor of defendants. Even if the identical claim against Koepke was submitted to the jury, and he was held to the same standard as Calla-way, we are satisfied that the jury could only have returned a verdict in Koepke’s favor. Accordingly, we find no error.

Finally, plaintiff contends that the court erred in directing a verdict in favor of WCL and Callaway on the claim of negligence in operating the train at an excessive rate of speed. Trains must be operated at speeds which are consistent with a due regard for the safety of passengers and the safety of persons crossing over the tracks. (Frankenthal v. Grand Trunk Western R.R. Co. (1983), 120 Ill. App. 3d 409, 415.) It is undisputed that the speed of the train was below the 40 mile-per-hour speed limit established by regulations promulgated by the Secretary of Transportation. (49 C.F.R. 213.9 (1990); 45 U.S.C. §434 (1986); see also Easterwood, 933 F.2d at 1553.) The testimony was also undisputed that, although the sun had set, the air was clear and Callaway attempted to stop the train when Koepke’s duty to call out a warning arose. Without evidence that conditions existed which would have made the speed of the train excessive, we find no error in directing a verdict for defendants on this issue.

III

Plaintiff further asserts that the trial court erred in granting defendant’s motion in limine and barring all evidence concerning WCL’s alleged routine practice and custom of failing to sound its whistle or horn when approaching the Lake Shore Drive crossing. During the hearing on the motions in limine in this case, plaintiff’s counsel stated that the proposed witnesses would testify that they “as a general practice have not heard the horn.” Evidence of an organization’s routine practice may be established by opinion testimony of a person with personal knowledge or by the introduction of specific instances of conduct sufficient in number to support a finding of routine practice. However, this evidence must be sufficiently detailed and specific, and the situations involved must be similar enough to give rise to a reliable inference. (Bradfield v. Illinois Central Gulf R.R. Co. (1987), 115 Ill. 2d 471, 480 (Ryan, J., dissenting).) In this case the substance of the proposed testimony based on plaintiff’s blanket statement is speculative. Without more specific information concerning the basis for the witnesses’ statements, we are unable to assess any prejudice caused by the exclusion. (See Hall v. Northwestern University Medical Clinics (1987), 152 Ill. App. 3d 716, 722.) Accordingly, we find no abuse of discretion in granting defendant’s motion in limine.

IV

Next, plaintiff contends that the court erred by instructing the jury on WCL’s duty to remove trees and brush from the crossing as follows:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute and administrative code regulations [sic] which provided that:
1. Every railroad shall keep its right of way adjacent to its track reasonably clear of brush, shrubbery, trees, weeds, crops and all unnecessary permanent obstructions such as unauthorized signs and billboards for a distance of at least 500 feet each way from every grade crossing where such things would materially obscure the view of approaching trains to travellers on the highway.
* * *
If you decide that a party violated the statute or rule on [the] occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether and to what extent, if any, a party was negligent before and at the time of the occurrence.” See Illinois Pattern Jury Instructions, Civil, No. 60.01 (3d ed. 1991).

The language concerning the railroad’s duty to remove trees and brush is identical to ICC rule 205. (92 Ill. Adm. Code §1535.205 (1985).) Plaintiff objects to this characterization of WCL’s duty to remove trees and shrubs on the basis that the instruction she tendered, which was refused, contains the following more appropriate language quoted from the Illinois Commercial Transportation Law:

“Every rail carrier operating in this State shall remove from its right of way at all grade crossings within the State, such brush, shrubbery and trees as is reasonably practical for a distance of not less than 500 feet in either direction from each grade crossing.” Ill. Rev. Stat. 1989, ch. 951/2, par. 18c — 7401.

The standard for assessing the adequacy of jury instructions is whether they fully, fairly, and comprehensively inform the jury of applicable legal principles. (Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co. (1990), 196 Ill. App. 3d 5, 18.) The trial court’s refusal to give an instruction will not form the basis of reversal unless it results in undue prejudice to a party. (Ferry v. Checker Taxi Co. (1987), 165 Ill. App. 3d 744, 749.) Plaintiff asserts prejudice in that the given instruction implies that an obscured view is permissible, although the language of the statute requires removal of all trees and shrubs and does not allow for obscured views. Thus, she contends that the court erred in refusing a proper instruction and giving one which lowered WCL’s duty and improperly increased her burden of proof.

We find no error in the instruction as given. At the close of the evidence, plaintiff was allowed to orally amend her complaint to conform to the proofs. On the issue of WCL’s negligence in failing to remove trees and shrubs, her complaint, as amended, asserted that WCL “failed to remove brush, shrubs or trees located on the railroad right-of-way within 500 feet of the Lake Shore Drive grade crossing which materially impaired the view that westbound motorists had of approaching trains.” A review of both instructions reveals that the instruction given more appropriately defines WCL’s duty as it relates to plaintiff’s specific claim of negligence. Accordingly, we find no abuse of discretion in giving this instruction.

V

At trial, defendants produced evidence of experiments conducted at the subject crossing by their expert, Rudolf Mortimer. In an effort to measure plaintiff’s ability to see and hear a train at the subject crossing, Mortimer sat in a car at various points along the approach to the crossing and observed a subject as he moved to various locations along the track. This same experiment was later conducted using the engine involved in the collision, and numerous posed photographs were taken at various points along the track. Plaintiff objects to the portions of Mortimer’s testimony relating to these experiments on the basis that the essential conditions at the time of the experiments were not the same as those at the time of the accident. Specifically, plaintiff objects to the time the experiments were conducted on the basis that the experiments took place during the day, when the collision occurred after the sun had set. Second, she contends that the subjects of the experiment were observed from fixed points, when at the time of the collision both the train and automobile were in motion. Third, plaintiff objects to the use of a 1990 Mercury Sable in the experiments because she was operating a 1985 Monte Carlo at the time of the collision, and defendants never proved that a 1990 Sable offered the same view or vantage point of the tracks. Plaintiff further contends that Mortimer’s testimony concerning the illumination of train headlights was improperly admitted because he lacked specialized knowledge or experience of train headlights.

The admissibility of experiments or tests depends on whether the “essential conditions” or “essential elements” of the experiment are substantially similar to those existing at the time of the accident. (Rios v. Navistar International Transportation Corp. (1990), 200 Ill. App. 3d 526, 532.) Because the “essential elements” or “essential conditions” vary, each case must be decided individually. If a test performed is represented to be a reenactment of the occurrence at issue, it is necessary to show that the test was performed under conditions that closely duplicate those at the time of the accident. (Galindo v. Riddell, Inc. (1982), 107 Ill. App. 3d 139, 144.) However, “if an experiment is intended to test only one aspect or principle directly related to the cause or result of the accident, the ‘essential conditions’ need not involve an exact duplication of the accident conditions.” (Rios, 200 Ill. App. 3d at 533; see also Galindo, 107 Ill. App. 3d at 144.) Nevertheless, the admissibility of experimental evidence is within the sound discretion of the trial court, whose decision will not be reversed absent a clear abuse of discretion. Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 416; Kent v. Knox Motor Service, Inc. (1981), 95 Ill. App. 3d 223, 225.

Mortimer performed several experiments with varying conditions to develop speed, sound and sight factors which he used together in estimating the points at which a reasonable driver would notice the headlight and horn of a train. Although these “essential conditions” did not exactly parallel the conditions at the time of the accident, the experiments were neither intended nor purported to be a reenactment. Furthermore, because the photographs of the locomotive at various points on the track were not a substantially similar depiction of the circumstances at the time of the collision, they were not admitted into evidence, thereby eliminating any alleged prejudicial effect. Plaintiff correctly notes that Mortimer stated in his deposition that train and automobile headlights are “totally dissimilar” and that his past experiments principally utilized automobile headlights. However, in this case, he utilized a design specification sheet published by General Electric to calculate the amount and direction of the light given produced by the train headlight. For these reasons, we find no abuse in admitting the testimony of Mortimer’s experiments.

VI

Lastly, plaintiff contends that she is entitled to a new trial on every issue “because the record is so replete with error including improper legal rulings, improper admissions and exclusions of evidence, and improper instructions to the jury.” “Perfect trials exist only in fiction, and we are not called upon to insure that the record is totally free of error. Rather, we have as our object to determine whether any error occurred which operated to the prejudice of the defendant or unduly affected the outcome below.” (Stromquist v. Burlington Northern, Inc. (1983), 112 Ill. App. 3d 37, 45.) Although plaintiff contends that a new trial is warranted when a case is tried on an erroneous or mistaken theory of law (Tankersley v. Peabody Coal Co. (1964), 31 Ill. 2d 496, 505), any error attributed to the trial court’s ruling that the pamphlet submitted by defendants served as the applicable legal standard was limited to the issue of the adequacy of the warning signals. Therefore, a new trial is warranted on the sole issue of whether the warning devices at the Lake Shore Drive crossing should have been upgraded.

Accordingly, we affirm in part, reverse in part, and remand this cause to the trial court for further proceedings in conformance with this opinion.

Affirmed in part; reversed in part and remanded.

INGLIS, P.J., and UNVERZAGT, J., concur.


source: Caselaw Access Project

author: JUSTICE NICKELS

license: Public Domain

text:
    JEFFREY M. JACOBSON et al., Plaintiffs-Appellees, v. GENERAL FINANCE CORPORATION, Defendant-Appellant.
    Second District
    No. 2—91—0635
    Opinion filed April 24, 1992.

      Lawrence X. Pusateri, Bruce N. Menkes, Mark W. Daliere, and Craig A. Varga, all of Peterson, Ross, Schloerb & Seidel, of Chicago, for appellant.
    James T. Magee, of Magee, Negele & Associates, of Round Lake, for appellees.
   JUSTICE NICKELS

delivered the opinion of the court:

Plaintiffs, Joy E. Jacobson and her son, Jeffrey M. Jacobson, brought suit in the circuit court of Lake Comity against defendant, General Finance Corporation of Illinois, alleging that a loan agreement with defendant provided for the collection of unlawful interest. Plaintiffs sought recovery pursuant to section 6 of “An Act in relation to the rate of interest and other charges in connection with sales on credit and the lending of money” (Interest Act) (Ill. Rev. Stat. 1989, ch. 17, par. 6413). Plaintiffs contend that the agreement provided that upon prepayment of the loan in full, defendant would be entitled to collect an amount of interest based upon the “Rule of 78’s” (Rule of 78’s) in violation of the Interest Act, subjecting defendant to liability under section 6.

Plaintiffs and defendant filed cross-motions for summary judgment. The circuit court granted plaintiffs’ motion and denied defendant’s motion in a memorandum order. The court subsequently entered judgment for plaintiffs and against defendant in the amount of $68,346 and awarded attorney fees of $17,086.50, plus costs to plaintiffs. Defendant appeals the entry of summary judgment in favor of plaintiffs and the denial of its motion for summary judgment. Defendant also appeals from the order of damages and attorney fees entered for plaintiff.

The issues on appeal are: (1) whether use of the Rule of 78’s in calculating the refund credit due upon prepayment of a loan of $25,000 secured by a residential real estate mortgage is authorized under section 4a of the Interest Act; (2) whether use of the Rule of 78’s in calculating said refund is prohibited by section 4 of the Interest Act; (3) whether statutory damages were improperly awarded to plaintiffs; (4) whether attorney fees were improperly awarded and computed according to a contingent fee agreement; and (5) what effect, if any, recent amendments to sections 4 and 4a have to this appeal.

The pleadings and affidavit of plaintiffs’ attorney establish the following facts. Plaintiffs borrowed $25,000 for 15 years (180 monthly payments) at a 13.75% rate of interest from Sco-Fed Credit Corporation and executed a promissory note. The loan was secured by a mortgage on plaintiffs’ personal residence. (Plaintiffs refer to this as a first mortgage in their amended complaint, and defendant’s verified answer admitted this allegation. However, defendant refers to the mortgage as a “second” mortgage. The trial court referred to it as a second mortgage.) Sometime after May 29, 1986, General Finance Corporation purchased and took an assignment of the loan obligation and security interest. Under the terms of the promissory note, plaintiff was to repay $25,000 in principal plus interest of $34,173, for a total of $59,173, said amount to be divided into 180 monthly payments. The promissory note contained the following provision:

“REBATE FOR PREPAYMENT: Borrower(s) may prepay this note in full (by cash, renewal or refinancing, or a new loan) one month or more before the final installment due date and receive a statutory refund or credit of the total of applicable interest for all fully unexpired installment periods as originally scheduled or as deferred which follow the day of prepayment. This statutory computation employs the sum of the digits’ method, also known as the ‘Rule of 78’s.’ Prepayment in full will reduce both the Finance Charge and Insurance Charge for the loan.”

Plaintiffs requested a payoff statement from defendant prior to September 13, 1989. According to defendant, the payoff balance on the loan as of September 13, 1989, was $25,976.10. Defendant applied the Rule of 78’s as provided for in the promissory note in determining the payoff balance. Plaintiffs paid $25,976.10 to defendant in prepayment of the loan. Plaintiffs then filed their complaint against defendant on May 22,1990.

In ruling in favor of plaintiffs’ motion for summary judgment, the circuit court found that the loan was not made for the purchase price of real estate, or an interest therein, and thus section 4a of the Interest Act did not preclude use of the Rule of 78’s in the case. (Ill. Rev. Stat. 1989, ch. 17, par. 6410.) However, the court found that section 4(3) of the Interest Act prohibited the use of the Rule of 78’s when a loan was secured by a mortgage on residential real estate. (Ill. Rev. Stat. 1989, ch. 17, par. 6404(3).) It determined that section 4a was a general provision and that section 4(3) was the more applicable provision to the case at bar. Therefore, use of the Rule of 78’s was prohibited. The court noted that if sections 4a and 4(3) could not be construed as such, section 4(3) was the more recently enacted provision, and it again controlled.

The Rule of 78’s, also known as the “sum of the digits” method, is a formula for computing an amount of interest due upon early payment of a loan. (Dechow v. Sko-Fed Credit (1989), 181 Ill. App. 3d 367, 369.) A higher percentage of the total finance charge is attributable to the first months of a loan than is attributable to the last months under this method. (Lanier v. Associates Finance, Inc. (1986), 114 Ill. 2d 1.) Using a 12-month loan as an example of the method, a total finance charge is calculated based upon payment of the loan over its full term. Next, the numbers 1 to 12 are added together, representing the number of installments for a one-year loan, to equal 78. If the borrower repays the loan after the first month, he pays 12h8 of the total finance charge and will pay 1:l/78 of the total finance charge the second month, and so on. (Dechow, 181 Ill. App. 3d at 369.) The creditor earns most of the finance charge during the early months of the loan term, and the amount of unearned finance charge which the debtor will be entitled to in the event of prepayment rapidly declines as the months go by. (Lanier, 114 Ill. 2d at 6-7.) Generally, it is plaintiffs’ position herein that use of the Rule of 78’s in determining the refund credit due upon prepayment of the loan was illegal. The promissory note provided for use of the Rule of 78’s in calculating the refund amount upon prepayment. The trial court found that use of the Rule of 78’s to calculate plaintiffs’ refund credit was prohibited by statute and entered summary judgment in plaintiffs’ favor.

Summary judgment is an appropriate means of disposing of a cause where, as here, there are no genuine issues of material fact and a movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 112; Ortegel v. I T T Thorp Corp. (1991), 210 Ill. App. 3d 669, 672.) Since the facts are not in dispute and the only questions involve statutory interpretation, we may review the issue as a matter of law. Ortegel, 210 Ill. App. 3d at 672.

Defendant first contends that the trial court erred in finding that section 4(3) of the Interest Act (Ill. Rev. Stat. 1989, ch. 17, par. 6404(3)) controlled the method of computing a refund credit for plaintiffs’ real estate secured loan which fell within the scope of section 4a (Ill. Rev. Stat. 1989, ch. 17, par. 6410). Defendant argues that section 4a(a)(i) allows the use of the Rule of 78’s to compute the refund credit due on loans which come under section 4a. (Ill. Rev. Stat. 1989, ch. 17, par. 6410(a)(i).) Under Dennis v. Old Republic Insurance Co. (1991), 218 Ill. App. 3d 637, defendant claims that section 4a controls in this case and that defendant properly applied the Rule of 78’s.

Plaintiffs have not disputed that their loan came within section 4a. However, they argue in support of the trial court’s decision that section 4(3) controls over section 4a in determining the refund credit due plaintiffs. They claim that the Rule of 78’s is prohibited under section 4(3). Ill. Rev. Stat. 1989, ch. 17, par. 6404(3).

While the parties have advanced various arguments concerning the legality of the application of the Rule of 78’s to the instant loan based upon their interpretations of sections 4 and 4a of the Interest Act (Ill. Rev. Stat. 1989, ch. 17, pars. 6404, 6410), we do not consider these arguments in view of the recent amendments to those sections. We have taken judicial notice of this amendatory act pursuant to defendant’s motion. Public Act 87 — 495, effective September 13, 1991, amended section 4(3) (Ill. Rev. Stat. 1989, ch. 17, par. 6404(3)) in the following manner:

“The provisions of this amendatory Act of 1985 shall apply only to contracts or loans entered into on or after the effective date of this amendatory Act, but shall not apply to contracts or loans entered into on or after that date that are subject to Section 4a of this Act, the Consumer Installment Loan Act, or the Retail Installment Sales Act, or that provide for the refund of precomputed interest on prepayment in the manner provided by such Act.” (Amendatory language underlined.) Pub. Act 87 — 495, §1, eff. Sept. 13, 1991.

The Act also amended section 4a(a)(i) (Ill. Rev. Stat. 1989, ch. 17, par. 6410(a)(i)) as follows:

“(i) [Ijnterest in an amount equivalent to interest computed at a rate not exceeding 9% per year on the entire principal amount of the money loaned or in any manner owing for the period from the date of the making of the loan or the incurring of the obligation for the amount owing evidenced by the written instrument until the date of the maturity of the last installment thereof, and to add that amount to the principal, except that there shall be no limit on the rate of interest which may be received or contracted to be received and collected by (1) a state banking corporation chartered under the Illinois Banking Act or a national banking association established under the laws of the United States and having its main office in this State; (2) a savings and loan association chartered under the Illinois Savings and Loan Act of 1985 or a federal savings and loan association established under the laws of the United States and having its main office in this State; or (3) any lender licensed under either the Consumer Finance Act, the Consumer Installment Loan Act or the Sales Finance Agency Act, but in any case in which interest is received, contracted for or collected on the basis of this clause (i), the debtor may satisfy in full at any time before maturity the debt evidenced by the written instrument, and in so satisfying must receive a refund credit against the total amount of interest added to the principal computed in the manner provided under Section 15(f)(3) of the Consumer Installment Loan Act for refunds or credits of applicable interest on payment in full of precomputed loans before the final installment due date *** or.” (Amendatory language underlined.) Pub. Act 87 — 495, §1, eff. Sept. 13,1991.

Public Act 87 — 495 provides that it shall apply retroactively:

“Section 2. This Act takes effect on becoming law, and the amendments made by this amendatory Act shall apply in determining the rights and obligations of the parties under contracts or loans entered into before that effective date, unless those rights and obligations have been determined by final judgment of a court of competent jurisdiction and no further review of that judgment may be had by appeal or otherwise.” Pub. Act 87-495, §2, eff. Sept. 13,1991.

The loan in issue herein was secured by a mortgage on residential real estate; however, it was not made for the purchase price of real estate or on interest therein. (Ill. Rev. Stat. 1989, ch. 17, par. 6410(a).) The amount of money loaned was $25,000, excluding interest and thus was in an amount not more than $25,000, excluding interest. (Ill. Rev. Stat. 1989, ch. 17, par. 6410(a).) The loan was evidenced by a written instrument that provided for payments of 180 monthly installments and therefore did not exceed 181 months. (111. Rev. Stat. 1989, ch. 17, par. 6410(a).) Plaintiffs’ loan came within the provisions of section 4a. Ill. Rev. Stat. 1989, ch. 17, par. 6410.

This court has found that by its express terms section 4a (Ill. Rev. Stat. 1989, ch. 17, par. 6410) applied only to loans secured by a mortgage which was of an amount not more than $25,000. (Ortegel, 210 Ill. App. 3d at 673.) The loan in Ortegel exceeded $25,000 and was secured by residential real estate, but since it was made in 1983, section 4(3) was found inapplicable. Dechow (181 Ill. App. 3d 367) was also found inapplicable to the Ortegel situation because Dechow relied on section 4(3). In Dechow (181 Ill. App. 3d at 371), we also noted that section 4a was inapplicable because section 4a only applied to certain loans of not more than $25,000. We went on in Dechow to state that if section 4a were applicable, we did not interpret a certain portion of section 4a as specifically authorizing computation of interest due by any method other than the actuarial method. (Dechow, 181 Ill. App. 3d at 371.) Dechow involved a loan for $49,000 secured by a mortgage on residential real estate, but made after the effective date of section 4(3). Ill. Rev. Stat. 1989, ch. 17, par. 6404(3).

Lastly, in Dennis v. Old Republic Insurance Co. (1991), 218 Ill. App. 3d 637, the Appellate Court, First District, distinguished its case from Dechow on the basis of the installment contract in Dennis which was for an amount less than $25,000, although secured by a mortgage on residential real estate. Both plaintiffs and defendant herein initially argue over the meaning and applicability of these cases which were decided prior to the recent amendments to sections 4 and 4a.

The recent amendment to section 4(3) by Public Act 87 — 495 resolves the issue regarding the relationship of the two sections. The amendment makes clear that section 4(3) (Ill. Rev. Stat. 1989, ch. 17, par. 6404(3)) does not apply to loans entered into on or after the effective date of section 4(3) (January 1, 1986), which are subject to section 4a of the Interest Act. (Pub. Act 87 — 495, §1, eff. Sept. 13, 1991.) Plaintiffs’ May 29, 1986, loan, as already discussed, is subject to section 4a. Plaintiffs do not dispute the fact that the amendment to section 4(3) results in the inapplicability of section 4(3) to their loan because their loan is subject to section 4a. Plaintiffs do argue, however, that Public Act 87 — 495 should not be applied retroactively and that, even under the recent amendment to section 4a(a)(i), defendant violated the Interest Act.

Plaintiffs claim that under the amendment to section 4a(a)(i) (Ill. Rev. Stat. 1989, ch. 17, par. 6410(a)(i)) the method for computing refunds has changed. They claim the old language of the statute set out the Rule of 78’s but now that language was dropped. In its place the refund is to be computed as provided in section 15(f)(3) of the Consumer Installment Loan Act (Consumer Act) (Ill. Rev. Stat. 1989, ch. 17, par. 5415). Plaintiffs assert that section 15(f)(3) does not recite the Rule of 78’s. Plaintiffs then read section 15(b) and section 15(f)(3) of the Consumer Act (Ill. Rev. Stat. 1989, ch. 17, pars. 5415(b), (f)(3)) together, apply their version of this computation to their case and conclude that defendant violated the new version of section 4a(a)(i) as well.

Although plaintiffs claim that the prior language of section 4a set forth the Rule of 78’s, case law indicates that there may have been some ambiguity on whether the Rule of 78’s was clearly set forth in section 4a. (See Dennis, 218 Ill. App. 3d at 642; Dechow, 181 Ill. App. 3d at 371.) Plaintiffs posit that the legislature did not need to amend section 4a if it intended the traditional Rule of 78’s to apply. While an amendment of an unambiguous statute indicates a purpose to change the law, no such purpose is indicated by the mere fact of an amendment of an ambiguous provision. O’Connor v. A&P Enterprises (1980), 81 Ill. 2d 260; Brownridge Institute of Karate, Inc. v. Dorris (1987), 162 Ill. App. 3d 483.

A subsequent amendment is an appropriate source of discerning legislative intent. (Brownridge, 162 Ill. App. 3d at 486.) If the circumstances suggest that the legislature intended to interpret the original statute, the presumption of change is rebutted. (Hession v. Illinois Department of Public Aid (1989), 129 Ill. 2d 535.) The legislative history of Public Act 87 — 495 shows the intent of the legislature only to clarify both sections 4(3) and 4a(a)(i). See Hession, 129 Ill. 2d at 543-44.

In the only remarks made on the amendatory act, Senator Jacobs, in speaking of Senate Bill 269 (Public Act 87 — 495), stated, “[t]he amendment to — Amendment No. 1 to 269 clarifies the computation for the prepayment of interest as specified in the Interest Act — that it shall not affect the prepayment provisions of the installment loan rate [Ill. Rev. Stat. 1989, ch. 17, par. 6410], consumer installment and the Retail Installment Sales Act. This is — the genesis of this is to straighten up a number of class action suits that have been brought forward.” (87th Ill. Gen. Assem., Senate Proceedings, May 21, 1991, at 282.) Senator Jacobs stated the next day that “[t]his bill, as amended [SB 269] clarifies that the prepayment section of the Interest Act [(Ill. Rev. Stat. 1989, ch. 17, par. 6404(3))] does not apply to the installment loan rate [(Ill. Rev. Stat. 1989, ch. 17, par. 6410)], the Consumer Installment Loan Act and the Retail Installment Sales Act. The prepayment section of the Interest Act affects mortgages on real estate, and under that clause, if you pay your mortgage off early, you don’t owe any more interest. *** This bill makes it clear that the prepayment provisions of those acts stand on their own.” (87th Ill. Gen. Assem., Senate Proceedings, May 22, 1991, at 245.) Thus, the legislative history of Public Act 87 — 495 shows an intent only to clarify the prepayment computation of section 4a(a)(i) (Ill. Rev. Stat. 1989, ch. 17, par. 6410(a)(i)) as well as to clarify that loans under section 4a are not subject to the prepayment provisions of section 4(3). (Ill. Rev. Stat. 1989, ch. 17, par. 6404(3).) A loan under section 4a can be secured by a mortgage on residential real estate as long as it meets the other prerequisites of section 4a.

Under Public Act 87 — 495, the refund credit is to be computed in the manner specified in section 15(f)(3) of the Consumer Act (Ill. Rev. Stat. 1989, ch. 17, par. 5415). The Illinois Department of Financial Institutions, the administrative agency charged with executing and enforcing the Consumer Act (Ill. Rev. Stat. 1989, ch. 17, par. 5428), interprets section 15 of the Consumer Act as specifying the Rule of 78’s. (38 Ill. Adm. Code §110.100 (1985).) The administrative regulation provides:

“Section 15 of the Act [(Consumer Act)] specifies the Rule of 78 as the method of rebating precomputed charges.” 38 Ill. Adm. Code §110.100(h) (1985).

Although not binding on this court, an administrative agency’s interpretation of a statute is entitled to substantial deference, and such construction should be and normally is persuasive. (Milkowski v. Department of Labor (1980), 82 Ill. App. 3d 220.) In construing statutory enactments, the General Assembly is presumed to know existing law including the body of law existing in administrative regulations. (Citizens Utilities Co. v. Pollution Control Board (1985), 133 Ill. App. 3d 406.) Under the administrative regulations, the Rule of 78’s is specified in section 15 of the Consumer Act. The amendment to section 4a(a)(i) specifies that the refund credit be computed in the manner provided under section 15(f)(3) of the Consumer Act. We conclude the amendment specifies the Rule of 78’s in computing the refund credit due plaintiffs.

Plaintiffs set forth a calculation of the refund credit based upon their reading of section 15 of the Consumer Act. However, plaintiffs misstate the statute regarding “applicable interest.” (Ill. Rev. Stat. 1989, ch. 17, par. 5415(b).) They state “ ‘applicable interest’ is that portion of interest in ratio to the total precomputed interest to the sum of all scheduled monthly installments.” Section 15(b) actually states that “ ‘applicable interest’ for any monthly installment period is that portion of the precomputed interest that bears the same ratio to the total precomputed interest as the balances scheduled to be outstanding during that month bear to the sum of all scheduled monthly outstanding balances in the original contract.” Ill. Rev. Stat. 1989, ch. 17, par. 5415(b).

Plaintiffs’ calculations are based on their interpretation of section 15(f)(3) of the Consumer Act, which they contend is not the traditional Rule of 78’s. They do not claim that defendants miscalculated their refund credit under the Rule of 78’s. Since we have determined that the Rule of 78’s applies under the amendment, plaintiffs’ argument is not applicable.

The legislature expressly provided that its amendments to sections 4 and 4a by Public Act 87 — 495 were to be applied retroactively. (Pub. Act 87 — 495, §2, eff. Sept. 13, 1991.) Plaintiffs contend, without citation to authority, that the amendments are substantive and not remedial or procedural. Thus, plaintiffs claim that retrospective application violates article I, section 16, of the Illinois Constitution prohibiting ex post facto laws. (Ill. Const. 1970, art. I, §16.) Plaintiffs do not contend that the amendment impairs the obligation of contracts or makes an irrevocable grant of special privileges or immunities under the same provision of the Constitution.

The ex post facto clause prevents this State from enacting any law “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” (In re Samuels (1989), 126 Ill. 2d 509, 523.) The Illinois ex post facto clause, however, applies only to retroactive measures which are either criminal or penal in nature. (Samuels, 126 Ill. 2d at 523-24.) Ex post facto is defined as limited to legislation which (1) makes criminal and punishable an act innocent when done; (2) aggravates a crime or makes it greater than it was when committed; (3) increases the punishment for a crime and applies the increase to crimes committed before the enactment of the law; and (4) alters legal rules of evidence so that testimony insufficient to convict of the offense when committed would be sufficient as to that particular offense and the accused person. (Stein v. Howlett (1972), 52 Ill. 2d 570, 584.) The legislative goal of the Interest Act is to impose a civil penalty on a lender, not to compensate the debtor. (Saskill v. 47-B Acceptance (1985), 139 Ill. App. 3d 143.) Usury laws are penal in nature as against the lender, and the repeal of such laws without a savings clause operates retrospectively cutting off the defense of usury in all future actions, even upon contracts previously entered. (Sweeney Citicorp Person-to-Person Financial Center, Inc. (1987), 157 Ill. App. 3d 47.) Thus, the retrospective amendments to sections 4 and 4a by Pub-lie Act 87 — 395 do not violate the ex post facto provision of the Illinois Constitution.

Plaintiffs assert that the new legislation does not change the remedies afforded for violations of the statute, but changes the substance of what is intended to be prohibited conduct. They cite to Cerniglia v. Farris (1987), 160 Ill. App. 3d 568, in support of their statement that such legislation cannot be applied to prior conduct. Cerniglia merely provides that the Premises Liability Act (Ill. Rev. Stat. 1985, ch. 80, par. 302), which abolished the distinction at common law between invitees and licensees as to the duty owed by an occupier or owner of premises, could not be applied retroactively to impose a duty of reasonable care on an occupier or owner of premises. Case law relied upon by the Cerniglia court shows that the Premises Liability Act was a substantive change because it altered the common-law duties and obligations owed by the landowner to an entrant on the premises, as well as the rights of the entrant. O’Donnell v. Electro-Motive Division of the General Motors Corp. (1986), 148 Ill. App. 3d 627.

Plaintiffs herein sought to recover statutory penalties from defendant provided in the statute for usurious loans. (Ill. Rev. Stat. 1989, ch. 17, par. 6413.) All usury statutes are in derogation of the common law and are a restriction upon the freedom of contract. (Sweeney, 157 Ill. App. 3d at 54.) There is no usury in the absence of a law limiting or prohibiting the use of the Rule of 78’s in determining the interest amount due or refunded on a loan. (See Sweeney, 157 Ill. App. 3d at 54.) The right of plaintiffs to avoid their contract, if the right did in fact exist under prior law, was available by statute for its own purposes and not because it affected the merits of plaintiffs’ obligations. Whatever the statute gave under such circumstances may be taken away by subsequent statute. (See Sweeney, 157 Ill. App. 3d at 54, citing Ewell v. Daggs (1883), 108 U.S. 143, 151, 27 L. Ed. 682, 685, 2.S. Ct. 408, 413-14.) There is no constitutionally vested right to the defense of usury, and the recent amendment which renders the use of the Rule of 78’s for this loan nonusurious, if it was ever usurious under prior statute, merely allows what was the original obligation of the parties to be enforced. See Sweeney, 157 Ill. App. 3d at 54.

We also note that plaintiffs did not raise section 6 of the Interest Act as a defense to a suit by defendant, but as an affirmative action to recover statutory penalties. Generally, the right to a remedy should be determined on the basis of the law and the circumstances at the time suit is brought and when judgment is to be entered. (Sweeney, 157 Ill. App. 3d at 55.) Since an appeal is a continuation of the same case, until either the time to appeal has expired or, if an appeal is pursued, until the reviewing court has rendered a decision, the judgment is not a final adjudication. (Bates v. Board of Education, Allendale Community Consolidated School District No. 17 (1990), 136 Ill. 2d 260.) Thus, under the present law plaintiffs’ loan does not come under section 4(3) because it is a section 4a loan, and use of the Rule of 78’s for refunds or credits of applicable interest on prepayment in full is not usurious for section 4a loans (Ill. Rev. Stat. 1989, ch. 17, pars. 6404(3), 6410(a)(i) (as amended by Pub. Act 87 — 495, §1, eff. Sept. 13, 1991)). (See Sweeney, 157 Ill. App. 3d at 55.) There is no penalty to recover and no remedy available for plaintiffs, as defendant’s use of the Rule of 78’s in determining the credit refund due plaintiffs is not illegal under present law.

Lastly, plaintiffs claim that since judgment has already been entered in favor of plaintiffs, they have a vested property right that cannot be usurped by Public Act 87 — 495. (Barnett v. Barnett (1949), 336 Ill. App. 601 (abstract of opinion).) Barnett is an abstract of a decision. Since plaintiffs have failed to append the entire text of said abstract opinion to their brief, we do not consider it as proper authority. (Uniform Appellate Rule 8, Ill. Rev. Stat. 1989, ch. 110A, par. 908.) We also note that the abstract shows that no timely appeal had been taken indicating that the trial court’s order had become a final adjudication. Bates, 136 Ill. 2d at 269.

Where the legislature changes the law pending an appeal, the case must be disposed of by the reviewing court under the law as it then exists, not as it was when judgment was entered in the lower court. (Bates, 136 Ill. 2d at 268-69.) Such a construction does not deprive the parties of vested rights because at the time Public Act 87— 495 became effective, a final judgment had not been entered in the present case because an appeal from the trial court’s order was being pursued. (Bates, 136 Ill. 2d at 269.) There was no final adjudication with respect to the rights of the parties to this appeal. (Bates, 136 El. 2d at 269.) The legislature explicitly acknowledged this rule of law in section 2 of Public Act 87 — 495. (Pub. Act 87 — 495, §2, eff. Sept. 13, 1991.) Retrospective application of the amendments to section 4 and 4a of the Interest Act in this case does not usurp any vested rights of plaintiffs.

We also are aware of a recent order entered November 19, 1991, by the Appellate Court, First District, in Pitts v. General Finance Corp., No. 1 — 90—2202, and Lee v. Household Finance Corp., No. 1— 90 — 2884, cons., brought to our attention in defendant’s motion for leave to cite additional authority. While we allowed defendant’s motion, we note that this unpublished order has no precedential value.

Lastly, plaintiffs have urged this court to find that the use of the Rule of 78’s herein constituted a “charge for prepayment” which would be illegal under section 4(2)(a). (Ill. Rev. Stat. 1989, ch. 17, par. 6404(2)(a).) They claim that Lanier v. Associates Finance, Inc. (1986), 114 Ill. 2d 1, and Ortegel v. ITT Thorp Corp. (1991), 210 Ill. App. 3d 669, only decided that the rule was not a “prepayment penalty” under section 4(2)(a) and did not address whether the rule was a “charge for prepayment” under that subsection. Plaintiffs contend that in Dechow v. Sko-Fed Credit (1989), 181 Ill. App. 3d 367, this court determined that the Rule of 78’s was a charge for prepayment under section 4(3) and the same reasoning should apply to section 4(2)(a).

Plaintiffs have only presented this argument with respect to their initial contentions concerning the applicability of sections 4 and 4a prior to amendment. They do not raise this issue with respect to the recent, retroactive amendments to sections 4 and 4a. (Pub. Act 87— 495, eff. Sept. 13, 1991.) Since plaintiffs do not argue the applicability of section 4(2)(a) under the new statutory provisions, we have no reason to consider section 4(2)(a) in view of our decision. See Commercial Mortgage & Finance Co. v. Life Savings of America (1989), 129 Ill. 2d 42, 49.

In any event, plaintiffs have failed to point out that under the express provisions of section 4(2), section 4(2)(a) does not apply to loans “to the extent permitted by the applicable statute for loans made pursuant to section 4a” (Ill. Rev. Stat. 1989, ch. 17, par. 6410). (Ill. Rev. Stat. 1989, ch. 17, par. 6404(2).) Plaintiffs’ loan comes under section 4a, and, therefore, section 4(2)(a) is not applicable herein.

Also, Dechow (181 Ill. App. 3d 367) was only concerned with whether the Rule of 78’s reflected an accrual of interest. (Ortegel, 210 Ill. App. 3d at 675.) In both Dechow (181 Ill. App. 3d 367) and Ortegel (210 Ill. App. 3d 669) the loans involved did not come under section 4a, unlike here, and section 4(2)(a) was an applicable provision to consider in relation to those loans. Contrary to plaintiffs’ assertion, this court in Ortegel was faced with the contention that computation of interest via the Rule of 78’s constituted a prepayment penalty or charge for prepayment under section 4(2)(a). Although this court referred to “prepayment penalties” throughout its discussion, we concluded with the holding that section 4(2)(a) of the Interest Act did not prohibit use of the Rule of 78’s in that case. Ill. Rev. Stat. 1989, ch. 17, par. 6404(2)(a).

Based upon the foregoing, defendant did not violate the Interest Act in computing plaintiffs’ refund credit by use of the Rule of 78’s as provided in the loan agreement. The order of the circuit court entering summary judgment in favor of plaintiffs is reversed, and summary judgment is entered for defendant. In view of our holding, we need not address defendant’s other issues concerning the award of damages and attorney fees for plaintiffs and against defendant as that order is also reversed by our decision.

The orders of the circuit court of Lake County are reversed.

Reversed.

UNVERZAGT and GEIGER, JJ., concur.


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES FURBY et al., Defendants-Appellants.
    Second District
    Nos. 2—87—1100, 2—87—1101 cons.
    Opinion filed April 29, 1992.

      George Patrick Lynch, Ltd., and M. Jacqueline Walther, of Kielian & Walther, both of Chicago (George P. Lynch, of counsel), for appellants.
    James E. Ryan, State’s Attorney, of Wheaton, and Kevin T. McClain, of Immel, Zelle, Ogren, McClain & Costello, of Springfield (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Following a jury trial, the defendants James Furby and Thomas Furby were convicted of theft in excess of $300 and were sentenced to probation and community service. On appeal, a majority of this court reversed the defendants’ convictions, holding that the State had failed to prove the corpus delicti of the offense of theft in excess of $300. The remaining issues raised by the defendants were not addressed by this court. (See People v. Furby (1989), 181 Ill. App. 3d 872, 883 (Lindberg, J., dissenting).) On appeal by the State the supreme court reversed, holding that the record contained sufficient proof of the corpus delicti and that there was sufficient evidence to sustain the defendants’ convictions. The supreme court remanded the case to this court so that we might address the remaining issues raised by the defendants. People v. Furby (1990), 138 Ill. 2d 434.

The facts of this case have previously been set forth in detail by this court (Furby, 181 Ill. App. 3d 872) and by the supreme court (Furby, 138 Ill. 2d 434) and, therefore, will not be repeated here except insofar as will aid in the understanding of the issues to be addressed.

Defendants raise the following issues: (1) whether defendants were denied their constitutional right of confrontation by the trial court’s restriction of their cross-examination of Sergeant Raymond Byrne, a witness for the State; (2) whether an instruction on accountability was improper; (3) whether the defendants were deprived of a fair trial by the admission of certain evidence; (4) whether the defendants were deprived of a fair trial by the admission of each defendant’s statement, implicating the other, without a limiting instruction; and (5) whether the defendants were denied their constitutional right to the effective assistance of counsel. We will address each issue in turn.

Cross-examination to show interest, bias or motive on the part of a witness is a matter of right, subject only to the broad discretion of the trial court to preclude repetitive or unduly harassing interrogation and, assuming a proper subject matter, to control the extent of cross-examination. (People v. Dowdy (1986), 140 Ill. App. 3d 631, 635.) It is a right protected by both the Federal and Illinois constitutions. (Dowdy, 140 Ill. App. 3d at 635.) Impeachment of a witness for the purpose of showing bias in testifying is an important function of the constitutionally protected right of cross-examination. (People v. Betts (1983), 116 Ill. App. 3d 551, 555.) The interest is satisfied when counsel is permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. (Betts, 116 Ill. App. 3d at 555.) It is important to note that the constitutional requirement must be satisfied first and only then does the court have discretion to limit the scope or extent of cross-examination. (116 Ill. App. 3d at 555.) The proposed cross-examination must relate to a proper subject matter; however, the evidence of bias or motive must be direct and positive, not remote and uncertain. Dowdy, 140 Ill. App. 3d at 635.

Sergeant Raymond Byrne interviewed both of the defendants separately and on different occasions. He testified that both defendants confessed to their participation in the theft from the pizza parlor. Defendants denied making the confessions. During cross-examination of Byrne, defense counsel asked the following questions:

“Q. Is it fair to say the police departments do not like unsolved crimes?”

and

“Is it fair to say as part of your duties as a police investigator you have a duty to obtain confessions from defendants?”

The State’s objections to both questions were sustained. Defense counsel did not request a sidebar to enlighten the trial court as to his reasons for asking the above questions, nor did he make an offer of proof. The defendants now argue that their trial counsel was “clearly attempting to develop a theory that Byrne had falsified the alleged statements in an effort to resolve an unsolved crime” and that this was a “legitimate defense theory in light of the [defendants’] denials that any confessions were made.”

The State argues that there was no evidence in the record to support defendants’ theory and points out that it is improper to conduct an interrogation which is neither based on evidence nor likely to be introduced into evidence. See People v. Nuccio (1969), 43 Ill. 2d 375; People v. Payton (1967), 82 Ill. App. 2d 51.

The widest latitude possible should be allowed a defendant on cross-examination for the purpose of establishing bias, motive or interest on the part of a -witness. (People v. Foley (1982), 109 Ill. App. 3d 1010, 1015.) Where the defendant’s theory is that the prosecution’s witness is unbelievable, it is error not to allow the cross-examination on matters which would reasonably tend to show bias, interest or motive to testify falsely. (Foley, 109 Ill. App. 3d at 1015.) However, evidence of bias, interest or motive must not be remote or uncertain, because the evidence must potentially give rise to the inference that the witness has something to gain or lose by his testimony. 109 Ill. App. 3d at 1015.

In the case before us, Sergeant Byrne’s testimony was critical to the State’s case. The alleged “confessions” by the defendants were never reduced to writing. Officer Reinhart, who according to Byrne was present when James made his statement, was never called to testify. Detective Kurt Schwebe, who was present at the time of Thomas’ statement to Byrne, testified that he had an independent recollection of Thomas’ statement but nevertheless had refreshed his recollection with Byrne’s report prior to testifying. There was physical evidence that a theft and/or burglary had taken place, but it was only through the use of the defendants’ statements, which the supreme court determined were corroborated by the physical evidence, that the defendants’ convictions were supported.

Defense counsel in this case did not enlighten the trial court with an offer of proof as to what he was trying to show with these questions to Sergeant Byrne. While an offer of proof in such situations is usually a necessity, given the questions put to Byrne by defense counsel, it is clear that he was attempting to show bias on the part of Byrne that would affect his credibility. Even if the trial court had any doubts as to the direction that defense counsel’s line of questioning was taking, given the requirement that the trial court give the greatest possible latitude in cross-examination to bring out bias, motive or interest, the fact that the trial court without comment sustained the State’s objection to the first question asked by defense counsel in this line of questioning, we must determine that the trial court’s sustaining of the State’s objections was premature and that the defendants were deprived of their right of confrontation.

The State argues that any error by the trial court’s restriction of the cross-examination of Sergeant Byrne was harmless error since even if Sergeant Byrne had admitted that he would push prosecutions to clear up cases it would only indicate a zealous law enforcement officer. The State further argues while the defense presented no evidence to support its theory that the police would arrest and charge people just to close their files, the State presented overwhelming evidence of defendants’ guilt.

When a Federal constitutional right is involved, the test is whether the error was harmless beyond a reasonable doubt. (Betts, 116 Ill. App. 3d at 556.) The question is whether there is a reasonable possibility that the error contributed to the conviction, and the court must consider if there is other evidence which overwhelmingly supports the verdict and if the impeachment evidence was merely corroborative of other properly admitted evidence. 116 Ill. App. 3d at 556.

Contrary to the State’s argument, the evidence against the defendants is not overwhelming. Without Byrne’s testimony as to the statements made by the defendants, there is little evidence that directly or indirectly establishes that the defendants committed the theft in the pizza parlor. The defendants denied making any statements to Byrne that implicated themselves or each other in the theft. Byrne did not have the defendants sign any written statements acknowledging their guilt. Except for the fact that the defendants’ statements corroborated certain details of the theft, there is no independent evidence of the defendants’ participation in the theft. Thus, Byrne’s credibility and any motive he might have for testifying as he did were of extreme importance in this case. We cannot say beyond a reasonable doubt that the error in restricting the cross-examination of Sergeant Byrne was harmless.

The defendants contend, next, that the trial court erred in giving the following instruction to the jury:

“A person who is legally responsible for the conduct of another may be convicted for the offense committed by the other person even though the other person, who it is claimed committed the offense, has not been prosecuted.” (Illinois Pattern Jury Instructions, Criminal, No. 5.06 (2d ed. 1981) (hereinafter IPI Criminal 2d).)

Defendants argue that this instruction conveyed to the jury the mistaken impression that the commission of the offense need not be proved beyond a reasonable doubt. The defendants acknowledge that the complained-of instruction is an IPI instruction but argue that it should not be used if it does not state the law. (134 Ill. 2d R. 451.) Defendants further acknowledge that defense counsel did not object to the giving of the above instruction but that the error was raised in their amended post-trial motion.

Both a trial objection and a written post-trial motion raising the issue are required for alleged error that could have been raised during the trial. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) However, the error may still be reviewable where plain error has occurred. (Enoch, 122 Ill. 2d at 190.) Plain error occurs when the evidence is closely balanced, or the error is so fundamental and of such magnitude that it deprives the defendant of a fair trial. (134 Ill. 2d R. 615(a).) Although the evidence is closely balanced in this case, no error occurred in the giving of the instruction.

The test for the giving of jury instructions is whether the instructions, taken as a whole, are sufficiently clear so as not to mislead the jury and whether they fairly and accurately state the law. (Friedman v. Park District (1986), 151 Ill. App. 3d 374, 388.) IPI Criminal 2d No. 5.06 is based on section 5 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 5 — 3), which provides as follows:

“A person who is legally accountable for the conduct of another which is an element of an offense may be convicted upon proof that the offense was committed and that he was so accountable, although the other person claimed to have committed the offense has not been prosecuted or convicted, or has been convicted of a different offense or degree of offense, or is not amenable to justice, or has been acquitted.” (Ill. Rev. Stat. 1985, ch. 38, par. 5 — 3.)

When IPI Criminal 2d No. 5.06 is given, IPI Criminal 2d No. 5.03 must also be given. IPI Criminal 2d No. 5.03 was given in this case and states as follows:

“A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense.” (IPI Criminal 2d No. 5.03.)

IPI Criminal 2d No. 5.03 is based upon section 5 — 2(c) of the Criminal Code of 1961, which states as follows:

“A person is legally accountable for the conduct of another when:
* * *
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2(c).)

We conclude that the tendered instruction accurately stated the law.

We further conclude that the giving of IPI Criminal 2d No. 5.06 did not mislead the jury. The jury was also instructed as follows:

“To sustain the charge of theft over $300.00, the State must prove the following propositions:
First: That James Lawson [the victim] was the owner of the United States Currency in question; and
Second: That each defendant, or one for whose conduct he is legally responsible, knowingly exerted unauthorized control over the United States currency; and
Third: That each defendant, or one for whose conduct he is legally responsible, intended to deprive James Lawson permanently of the use or benefit of the United States currency; and Fourth: That the United States currency which each defendant, or one for whose conduct he is legally responsible, controlled without authorization had a value in excess of $300.00.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendants guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendants not guilty.” See IPI Criminal 2d No. 13.02A.

At trial, there was evidence before the jury that Michael Phillips had participated in the theft but was never charged in connection with the theft. There was also evidence that Thomas did not participate in the actual theft but was present at the scene, knew that James and Phillips intended to commit the theft and later shared in the proceeds of the theft. Thus, there was sufficient evidence upon which to give IPI Criminal 2d Nos. 5.03 and 5.06. Moreover, the giving of IPI Criminal 2d No. 13.02A informed the jury that it could not convict defendants as principals or on an accountability theory unless each element of the offense had been proved against them beyond a reasonable doubt. Thus, no error occurred in the giving of IPI Criminal 2d No. 5.06.

Next, defendants contend that they were denied a fair trial by the admission of evidence that the police had received information from an anonymous source implicating them in the theft. During the direct examination testimony of Sergeant Byrne, the following colloquy occurred:

“Q. Now the testimony you related regarding what Jim Furby told you, is that how he related it to you?
A. Yes, he did.
Q. Those are basically the words that he used; is that correct?
A. That’s correct.
Q. Did you supply him with any information prior to that regarding this burglary?
A. Yes.
Q. What was that?
A. I did tell him that I had received some preliminary information from an anonymous source that he was possibly involved in it.
Q. My question is did you supply him with any of the specifics of what occurred at the scene of that burglary on November 7th, 1985?
A. No, I did not.”

Defendants contend that Byrne’s statement that he had received an anonymous tip that James was involved in the theft was inadmissible hearsay.

The State argues that the defendants have waived this issue by failing to object to it or to make a motion to strike the testimony during the trial. (People v. Ishmael (1984), 126 Ill. App. 3d 320, 329.) The State further argues that the statement was not hearsay, as it was not admitted for the truth of the matter asserted, i.e., that James had committed the theft, but rather to show the basis for James’ alleged confession. Given the closely balanced evidence in this case, we choose to review this issue as plain error. 134 Ill. 2d R. 615(a); People v. Davis (1984), 130 Ill. App. 3d 41, 52.

In People v. Kneller (1980), 83 Ill. App. 3d 325, the complaining witness testified that his checkbook, which was missing following the burglary of his apartment, was mailed back to him without a return address. On further questioning, he testified that he received a telephone call and that the caller identified herself as Kneller’s mother. Over the defense’s objection, he was allowed to testify that the caller told him she had found the checkbook in Kneller’s car. Kneller was convicted of burglary and appealed.

In reversing Kneller’s conviction and remanding the cause for a new trial, the reviewing court cited the distinction between hearsay and nonhearsay testimony as set forth in People v. Carpenter (1963), 28 Ill. 2d 116:

“ ‘The distinction between admissible testimony and that which is barred by the hearsay rule is well illustrated by Wigmore’s example of the witness A testifying that “B told me that event X occurred.” If A’s testimony is offered for the purpose of establishing that B said this, it is clearly admissible — if offered to prove that event X occurred, it is clearly inadmissible, for the only probative value rests in B’s knowledge — and B is not present to be cross-examined.’ [Citation.]” (Kneller, 83 Ill. App. 3d at 330, quoting Carpenter, 28 Ill. 2d at 121.)

The State in Kneller argued that the testimony was admitted merely to show that the conversation had taken place. The court pointed out, however, that no limiting instruction was offered and that it was obvious that the testimony had been admitted to show that the complaining witness’ checkbook had been found in Kneller’s car. Although the evidence supported a strong circumstantial case against Kneller, the error in admitting the hearsay testimony made the State’s case that much stronger, which precluded a finding that the error was harmless.

In its brief, the State argues that Byrne’s statement was “intended to show that he received information from an anonymous source — not that Jim Furby was guilty.” We find this situation analogous to the conversation in Kneller. Previous to the complained-of statement, the State had already elicited testimony from Byrne that James was present at the Downers Grove police station and had given a statement to Byrne. The only conceivable reason for the complained-of testimony was to further tie James to the theft charge. Contrary to the State’s argument, we find that the testimony was admitted for the truth of the matter asserted and is, therefore, hearsay.

The issue then becomes whether this error was harmless. It has been held that the admission of incompetent testimony will not constitute reversible error if it appears such testimony could not reasonably have affected the jury’s result. (Kneller, 83 Ill. App. 3d at 330.) Reversal is not required if the court determines that the admission of such evidence was harmless beyond a reasonable doubt. (83 Ill. App. 3d at 330.) Given the closely balanced evidence in this case, we cannot say beyond a reasonable doubt that the error was harmless.

Next, the defendants contend that they were deprived of a fair trial where each defendant’s statement, implicating the other defendant, was admitted without a limiting instruction. (See IPI Criminal 2d No. 3.08 (A statement made by one defendant may not be considered by the jury against the other defendant).) Defendants acknowledge that no such instruction was requested at trial but point out that they did raise the error in their amended post-trial motion. However, as we have previously stated, the preservation of an error requires that the error be preserved by both an objection at trial and be included in a post-trial motion. (Enoch, 122 Ill. 2d at 190.) Nonetheless, we agree with the defendants that the absence of the instruction was plain error, and we will review it on that basis. People v. Campbell (1983), 115 Ill. App. 3d 631, 636.

In People v. Tyner (1964), 30 Ill. 2d 101, our supreme court stated as follows:

“We have repeatedly held that the confession or admission of a co-defendant is not admissible against the accused unless made in his presence or assented to by him. [Citations.] Where, however, the participants are jointly tried and there has been no motion for severance, the confession of a co-defendant may be admitted if its admissibility is clearly limited to the participant who made the statement. As to the other defendants it is pure hearsay. [Citations.] Here the court made no attempt to limit the statement’s applicability solely to Kelley but to the contrary the State was permitted, upon argument, to buttress its case against defendant with this hearsay statement. In our opinion the trial court erred in this respect.” Tyner, 30 Ill. 2d at 105-06.

It is clear that the statements attributed to the defendants should not have been admitted without a limiting instruction. Given the critical importance of the statements to the State’s case, we cannot speculate that the jury convicted each defendant on his own statement and was not influenced by the other defendant’s statement. It was error, therefore, to admit the defendants’ statements without a limiting instruction.

Finally, the defendants contend that they were denied the effective assistance of counsel. We agree.

In order to show whether he has been denied his constitutionally guaranteed right to the effective assistance of counsel, a defendant must show that his trial counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable possibility that the result would have been different had there not been ineffective assistance of counsel. (People v. Bell (1987), 152 Ill. App. 3d 1007, 1011.) A reviewing court must indulge in a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance; additionally, errors in trial strategy or judgment alone do not establish that the representation was incompetent. (Bell, 152 Ill. App. 3d at 1011.) The general rule is that courts will not disturb a conviction on the basis of ineffective assistance of counsel unless the totality of counsel’s conduct indicates his actual incompetence. 152 Ill. App. 3d at 1011.

We have previously identified three errors, each of which requires that the defendants receive a new trial. None of them could be described as either trial strategy or the exercise of judgment on the part of trial counsel. We therefore agree with the defendants that they were sufficiently prejudiced by the ineffective representation they received to be entitled to a new trial. As for the other instances of ineffective assistance of counsel set forth by the defendants, we trust they will not occur with new trial counsel.

The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

UNVERZAGT and McLAREN, JJ., concur.