author: JUSTICE WELCH

text:
    ROBERT WILSON, Plaintiff-Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant and Third-Party Plaintiff-Appellant.—(Baker Equipment Engineering Co., Inc., Third-Party Defendant-Appellee.)
    Fifth District
    No. 81—496
    Opinion filed September 1, 1982.

      Karl D. Dexheimer, of Pope and Driemeyer, of Belleville, for appellant.
    Michael B. Constance and Edward J. Szewczyk, both of Donovan, Hatch & Constance, P. C., of Belleville, for appellee Baker Equipment Engineering Co., Inc.
    Jerome Mirza & Associates, Ltd., of Bloomington (Jerome Mirza, of counsel), for appellee Robert Wilson.
   JUSTICE WELCH

delivered the opinion of the court:

On October 27, 1977, the plaintiff, Robert Wilson, was employed as a road electrician for the Norfolk and Western Railway, and had been so employed for approximately a year. The position of road electrician was, in railroad terminology, equivalent to that of a lineman for a power company, and Wilson had over 30 years’ experience as a journeyman lineman. That day, he was performing work in Norfolk and Western’s Fort Wayne, Indiana, yard while 25 or 30 feet above ground level in the fiberglass bucket of a piece of machinery known as the Baker B — 10 digger-derrick. During this work, he came in contact with high-voltage wires and suffered severe burns on his chest and left hand.

The plaintiff instituted the present action against his employer in the circuit court of Madison County. He alleged that his employer was liable to him under the Federal Employers’ Liability Act (45 U.S.C. secs. 51 through 60 (1976)), specifically because it had failed to provide him with a safe place to work, because it had not given him a stable bucket in which to do elevated work, and because it had not furnished him with sufficient assistance to enable him to work in reasonable safety. Norfolk and Western, in turn, filed a third-party complaint against Baker Equipment Engineering Co., Inc., claiming that any injury sustained by the plaintiff was caused by the failure of Baker to design and manufacture a safe bucket truck. The case was tried before a jury, which found for the plaintiff in the amount of $618,750, and which found against Norfolk and Western in its third-party action. Norfolk and Western appeals from the trial court’s entry of judgment on both of these verdicts, and argues that several errors acted to deprive it of a fair trial.

The appellant’s first group of arguments relates to a prior inconsistent statement given by the plaintiff. At trial, one of the plaintiff’s theories of recovery, as corroborated by his own testimony, was that the fiberglass bucket had tipped while he was working in it, forcing him into contact with the energized wires. After his injury, the plaintiff had dealings with Norfolk and Western claim agent Maurice Woods, who directed that a statement be taken from the plaintiff on January 4, 1978, and transcribed. In the course of that statement, the plaintiff gave his opinion that the bucket did not tip.

Norfolk and Western’s attorneys took a deposition of the plaintiff on September 12, 1978. When the plaintiff was asked about the earlier statement, his counsel responded:

“I have read the statement, and I believe the circumstances under which it was obtained by a railroad claim agent, and I find nowhere that the railroad that he was not required to talk to the railroad claim agent or have benefit of counsel at that time. [Sic.] So, under those circumstances, I expect this statement would be held to be non-usable by the defense counsel, so I won’t let the witness answer any questions regarding that statement.”

On November 3, 1978, Norfolk and Western filed a motion to compel the plaintiff to answer questions pertaining to the previous statement, as well as certain other questions not pertinent to this appeal. That portion of the motion dealing with the statement to claim agent Woods was denied.

At trial, counsel for the railroad cross-examined the plaintiff about the contents of the statement. Counsel asked if the plaintiff had told Woods that the bucket had not tipped, and the plaintiff replied in the affirmative. The plaintiff was also asked why he had said that, and the plaintiff stated that “that’s what he [Woods] wanted me to say.”

On redirect examination, plaintiff’s counsel inquired into the circumstances surrounding the giving of the statement. Counsel for the railroad objected to this line of inquiry because, among other grounds, the plaintiff had not been required to provide information about the statement when his deposition was taken. These objections were overruled.

The plaintiff recalled that Woods had picked him up at the hospital in Springfield, Illinois, when he was discharged from it on December 7, 1977. During the ride home, Woods told the plaintiff that he had a $500 check available at his office to cover the plaintiffs personal expenses. The plaintiff picked up that check a week later. About the first of January 1978, the plaintiff requested $1,000 more for personal expenses, and Woods allegedly told him that “the people in Roanoke [Va.]” first wanted a statement from him, since he had not filed an accident report. An appointment with a court reporter was later scheduled for January 4.

On that day, the plaintiff remembered, he came to Woods’ office about an hour and a half before the reporter arrived. The plaintiff testified that he told Woods that he was injured when the fiberglass bucket moved. According to the plaintiff, Woods informed him that “the people in Roanoke” would not want the equipment criticized in the statement. The statement was taken, beginning at 10 that morning and concluding before lunch. The plaintiff received the requested $1,000 check after lunch.

Continuing the redirect examination, plaintiff’s counsel asked whether the plaintiff had sought another advance from Woods after the statement was taken. He testified that, several weeks after January 4, he asked Woods for $925 for car insurance premiums. Woods told him that this would have to be approved by his superiors in Roanoke. A few days later, the plaintiff telephoned Woods to inquire about the advance, and Woods allegedly informed the plaintiff that he had already drawn advances which were “too near what the actual settlement would be,” and therefore no more advances could be given.

The railroad called Maurice Woods to testify in its case in chief. Woods testified that, during the ride home from the hospital on December 7, 1977, he did not discuss money or settlement with the plaintiff. He also stated that, on January 4, 1978, the plaintiff arrived at his office only “a few minutes” before the statement was taken. Woods denied telling the plaintiff either that the railroad officials would not want to hear their equipment criticized or that any further advances were contingent upon the plaintiff’s giving of a statement. He did recall that the plaintiff received an advance of $1,000 on the afternoon of January 4.

In February 1978, according to Woods, the plaintiff requested $3,500 to buy a new camper. Woods called Jack Ward, his superior, who told him that an advance could not be made for that particular purchase although further advances could be made to assist the plaintiff in obtaining necessities. Also in February 1978, the plaintiff requested that Woods send him a check for $950 for living expenses, including insurance premiums. Woods forwarded the request to Roanoke, but heard nothing more about it until the plaintiff called him to find out about the advance some time in March. Woods called his superiors, who informed him that the plaintiff was currently represented by an attorney and that therefore the requested advance should be denied.

Robert Hansen, who was a claim agent who had worked with Maurice Woods, also testified for the railroad. He had accompanied Woods to pick the plaintiff up at the hospital on December 7, 1977. Hansen testified that neither money nor settlement was discussed with the plaintiff at that time.

In rebuttal, the plaintiff called Thomas Dailey, who had formerly worked as a claim agent with Woods. Dailey testified that he had some knowledge of the plaintiff’s claim, but he had not personally given the plaintiff any advances. According to Dailey, the plaintiff was in Maurice Woods’ office at 8 a.m. on January 4, 1978, and the plaintiff was heard to tell Woods, before the reporter arrived, how the accident occurred. Dailey said that it was standard procedure for Norfolk and Western claim agents to review the facts with a claimant before a statement was made of record. Finally, Dailey alleged that Woods had told him, before the plaintiff’s statement was taken, that he had the plaintiff “in the palms of his hands.” Jack Ward, assistant chief claim agent for Norfolk and Western, testified as a surrebuttal witness that Dailey had been dismissed from the service of the railroad because he would not accept a transfer from Decatur, Illinois, to Fort Wayne, Indiana. In Ward’s opinion, the decision to transfer Dailey was made because of Dailey’s unsatisfactory work, because of a personality conflict with Maurice Woods and because of complications due to Dailey’s outside business interests in Decatur.

The railroad objects to the exchange, as set forth in detail above, for four reasons. First, it argues that the failure of the court to allow it to examine the plaintiff about the statement during discovery resulted in unfair surprise when the plaintiff testified about the statement on redirect examination. Second, it is claimed that the plaintiff’s explanation of the giving of the statement went far beyond the scope of cross-examination, in that he testified about events which occurred as early as a month before the statement was given and as late as a month after that date. Third, the rebuttal testimony of Thomas Dailey is characterized as improper impeachment by extrinsic evidence on collateral matters. Finally, throughout the course of the evidence on the plaintiff’s dealings with the claim agents, the railroad contends that numerous impermissible references to settlement negotiations were made. We only need address the first of these arguments.

The Illinois Supreme Court Rules pertaining to discovery (87 Ill. 2d Rules 201-219) have been broadly construed in order to encourage extensive pretrial disclosure. (Buehler v. Whalen (1977), 70 Ill. 2d 51, 374 N.E.2d 460; Monier v. Chamberlain (1966), 35 Ill. 2d 351, 221 N.E.2d 410.) The parties to litigation are entitled to inquire into matters which will be admissible at trial, as well as information which only leads to matters admissible at trial. (Elliot v. Board of Education (1975), 31 Ill. App. 3d 355, 335 N.E.2d 33; City of Bloomington v. Quinn (1969), 114 Ill. App. 2d 145, 252 N.E.2d 10.) Control of the discovery process is vested in the discretion of the trial court, and any orders made concerning discovery will not be modified on appeal unless the appellant makes an “affirmative showing of abuse.” Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1978), 61 Ill. App. 3d 636, 377 N.E.2d 1125.

The railroad argues that the trial court erred in denying its motion to compel the plaintiff to answer questions pertaining to the circumstances under which his statement was taken by claim agent Woods. Counsel for the railroad and for the plaintiff correctly note that Schusler v. Fletcher (1966), 74 Ill. App. 2d 249, 219 N.E.2d 588, holds that a witness’ explanation of his reasons for giving contradictory statements is admissible at trial. Therefore, since there is no doubt of the admissibility of the information sought by the railroad’s counsel at the plaintiff’s discovery deposition, and since none of the parties suggests the existence of any privilege or other facts which would render the information exempt from discovery, we agree that the court abused its discretion in not compelling the plaintiff to answer questions about his statement to claim agent Woods.

But, this type of error does not automatically compel the reversal of a judgment. Admission at trial of evidence which should have been disclosed during the discovery process but was not is not reversible error absent proof that prejudice resulted from the erroneous restriction of discovery. (See Schranz v. I. L. Grossman, Inc. (1980), 90 Ill. App. 3d 507, 412 N.E.2d 1378; Smith v. Realcoa Construction Co. (1973), 13 Ill. App. 3d 254, 300 N.E.2d 855.) Here, the railroad contends, as it did at trial, that it was surprised by the plaintiff’s version of the events under which his statement was taken. It is claimed that, had the railroad known of the damaging nature of the accusations which the plaintiff would make against its claims employees on redirect examination, it would not have attempted to impeach him on cross-examination by referring to his prior inconsistent statement to claim agent Woods.

We believe that these allegations constitute a showing of prejudice to the railroad sufficient to require reversal. The trial court’s denial of the railroad’s motion to compel answers about the prior statement forced the railroad to proceed to trial with less than adequate preparation. Without knowing the substance of the plaintiff’s potential testimony concerning the statement, the railroad could not have been able to make an informed decision whether or not to impeach him with it. And, it cannot be said that the railroad had constructive knowledge of the taking of the statement due to the presence of its claims employees at that proceeding, because the plaintiff’s version of that event, which is what the railroad claims to have been surprised by, was entirely different from the version given by agent Woods.

The plaintiff argues that the overwhelming nature of the evidence against the' railroad renders the discovery violation harmless at most. We do agree that substantial evidence has been introduced to prove the railroad’s liability to the plaintiff, but given the size of the verdict rendered in favor of the plaintiff, we are not convinced that the judgment was unaffected by the testimony concerning the railroad’s claims practices. The railroad was certainly at a disadvantage in not knowing how the plaintiff would explain his earlier statement, and compelling the railroad to proceed without that knowledge deprived it of a fair trial and mandates a new one. (Cox v. Yellow Cab Co. (1973), 16 Ill. App. 3d 665, 306 N.E.2d 738, aff’d (1975), 61 Ill. 2d 416, 337 N.E.2d 15.) A contrary holding would neutralize the beneficial effects of the discovery rules.

Baker Equipment Engineering Co. requests this court to affirm the third-party judgment in its favor, regardless of the disposition made of the plaintiff’s action against the railroad. Baker asserts that “the evidence relevant to the third party action was presented in a straight forward manner, the jury was properly instructed on that aspect of the case, and returned a consistent verdict supported by the evidence.” The railroad’s theory in its third-party action was that, if it failed to comply with the Federal Employers’ Liability Act, its failure was due to the fact that the Baker B — 10 digger-derrick was not reasonably safe. Baker denied these allegations and also contended, in an affirmative defense filed during trial, that the railroad assumed any risks posed by the instability of the fiberglass bucket on the B— 10.

A digger-derrick is similar in appearance to what is commonly known as a “bucket truck.” However, the primary purpose of the digger-derrick is to dig holes for utility poles and set them into those holes. On the B — 10, a fiberglass bucket was available, not as standard equipment, but as an option. It would pin onto the truck’s boom, which would carry a worker so as to enable him to perform elevated work.

The alleged defect in the B — 10 digger-derrick consists of the absence of a brake to lock the otherwise free-swinging bucket into place when desired by the workman. At trial, it was noted that some bucket trucks are made with hydraulically operated buckets, and the bucket is held in place by the hydraulic mechanism, even when the bucket is being raised. Other models, including other digger-derricks, are fitted with handbrakes, which the workman can engage when he reaches his working position. All witnesses who were employed by Baker agreed that a brake was not listed as a standard option on the B — 10, and those witnesses for Baker and for the railroad who were involved with the purchase of the B — 10 in which the plaintiff was injured, stated that they did not discuss the possibility of a brake for the bucket. Gary McAlexander, vice-president of Baker, testified that his' company had furnished brakes on B — 10’s to several customers, and that this modification had cost the customer between $200 and $250. He also recalled that Baker marketed a digger-derrick by a competitor, Tel-E-Lect, which did offer a brake as an option. Because the B— 10 was an older model, although still unused, it sold for approximately $7,500 less than the comparable Tel-E-Lect model.

The two Norfolk and Western employees who participated in the purchase of the B — 10 were E H. “Tiny” Wilbourn, the railroad’s director of automotive equipment, and Clyde Board, the plaintiff’s immediate supervisor. Both Wilbourn and Board stated that they informed Baker employees McAlexander and William McKnight that they intended to use the B — 10 for work on high voltage lines and McAlexander and McKnight did not tell them that this use would be inappropriate. Board said that he requested McKnight to obtain a longer jib for the B — 10 so that it could reach the 55-foot tall poles from which the high voltage wires were suspended. According to Board, McKnight told him that he could not comply with this request because of OSHA specifications.

William McKnight testified that after the sale of the B — 10 had been completed, he travelled to Decatur, Illinois, to instruct railroad personnel, including Clyde Board, about the use of the B — 10. He stated that he informed these employees that the B — 10 should not be used for any work around live wires, and he recalled that the primary purpose for his trip was to make certain that this warning was understood. McKnight also noted that he demonstrated that the bucket of the B — 10 could tip. Board remembered speaking with McKnight after the B — 10 was delivered, but he recalled that McKnight assured him that it would be safe for live wire work.

It is undisputed that the railroad’s employees did not indicate to Baker that they were dissatisfied with the B — 10 because it did not have a brake. The plaintiff, who began working with the railroad about a year after the B — 10 was purchased testified that he told Clyde Board that the equipment he had used in his earlier employment had some sort of brake. Board responded that the railroad did not buy that type of equipment.

As Baker correctly indicates, a plaintiff assumes the risk of a defective product “only if he is actually aware of the defective nature of the product and appreciates its unreasonably dangerous character, but chooses voluntarily to act in disregard of such danger.” (Thomas v. Kaiser Agricultural Chemicals (1980), 81 Ill. 2d 206, 213, 407 N.E.2d 32, 35; Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305.) This inquiry is normally for the jury. (Thomas.) In the present case, conflicting evidence was presented concerning the state of the railroad’s knowledge of the safety of the B— 10 for live wire work. Essentially, a question of credibility arose between Baker employees McAlexander and McKnight on one hand and railroad employees Board and Wilbourn on the other. Because we cannot say that the resolution of this credibility issue, and thus the verdict in favor of Baker, was unaffected by the testimony concerning the railroad’s claims practices, we must also reverse the judgment in the third-party action and remand it for a new trial as well.

Having concluded that a new trial is required in this cause, we will address those of the railroad’s remaining assignments of error which are likely to arise again upon remand. Specifically, the railroad challenges the court's rulings on the admissibility of certain custom and practice evidence as well as certain photographs and also takes issue with the instructions given to the jury.

It is undisputed that when he was injured the plaintiff was not wearing the insulated safety gloves issued to him by the railroad. He received burns on his left hand and his chest. It is also undisputed that, although he was assisted by co-worker Tony Bradford while he completed the work on the live wires on the morning of October 27, the plaintiff was working alone when he was injured on that afternoon. The plaintiff testified that he passed out upon being injured, and, when he regained consciousness, he lowered the bucket by operating the controls with his right hand. He shouted for assistance, and other railroad workers responded to his calls.

Norfolk and Western’s safety rule 1264 required a workman to wear certain protective equipment “when it is necessary to work on energized electrical Wires or apparatus,” the equipment to vary according to the voltage in the wires or apparatus. Before trial, the plaintiff filed a motion in limine to prevent the railroad from introducing the safety rules or practices of any organization other than the railroad regarding the wearing of safety gloves. This motion was granted.

The railroad filed its own motion in limine to prohibit the plaintiff from referring to any safety rules or to the “rules, customs or practices” of any organization other than the defendant concerning the number of men required to do a job such as the one performed by the plaintiff when he was injured. The court allowed the motion insofar as it related to safety rules, but denied that portion of the motion which sought to prevent the introduction of custom and practice testimony.

At trial, several witnesses presented their own interpretations of Norfolk and Western rule 1264. Tony Bradford and Clyde Board stated that they read that rule to require the use of safety gloves when a workman was working on a pole within the vicinity of live wires. The plaintiff testified that, since he was working on a dead cross-arm and not a live wire, rule 1264 did not mean that he had to wear gloves. Frank Stevens, manager of operations for the Cornbelt Electric Cooperative in Bloomington, Illinois, testified that he agreed with the plaintiff’s reading of the rule.

Tom Hentz, operations supervisor for the Southwestern Electric Co-operative in Greenville, Illinois, also interpreted rule 1264, although he did not do so in testimony before the jury. In an offer of proof by the railroad, he stated that, while it would have been the practice for employees of his organization to wear gloves during work such as that performed by the plaintiff when he was injured, the railroad’s rule did not require the plaintiff to do so. Hentz noted that the relevant safety rule at Southwestern specified that gloves were to be used when the workman was “within reaching or falling distance” of an energized line. According to Hentz, the safety rules employed by power companies varied widely, some reading like Southwestern’s rule and others, like that followed at Illinois Power Company, necessitating gloves only when work was done “on” live lines. In further testimony on this offer of proof, Frank Stevens stated that Cornbelt used the same rule that Southwestern used.

Hentz and Stevens testified before the jury that it was the custom and practice of their respective employers to require a work crew of at least two employees when a job had to be done from an elevated bucket around live wires. Some ground work, they stated, was performed by their workers without assistance.

The railroad assigns as error the evidentiary rulings which allowed the presentation of all of this testimony. It argues that it should have been permitted to introduce evidence of the safety rules and customs and practices of other companies concerning the wearing of safety gloves, and it contends that Frank Stevens was not qualified to interpret its rule 1264. The railroad also claims that the plaintiff should not have been permitted to offer the testimony of Stevens and Hentz on the number of men required for elevated work, because the testimony was irrelevant and because Stevens and Hentz had no experience working in the railroad industry. We consider these arguments in the order presented above.

At issue in our review of the court’s order granting the plaintiff’s motion in limine is whether a defendant railroad in an FELA action may introduce safety rules, customs and practices of other railroads to show the contributory negligence of the plaintiff, even though it has promulgated its own safety rule which specifically applies to the allegedly negligent conduct of the plaintiff. Our research has uncovered no authority which directly answers this question, nor have the parties directed us to any such authority.

In Genzel v. New York, Chicago & St. Louis R.R. Co. (1928), 249 Ill. App. 164, the plaintiff requested the defendant to furnish him with its book of operating rules, and it did. However, the plaintiff introduced a witness, Lawrence, who testified concerning his own interpretation of the rules of the Wabash Railroad Company. Lawrence, who had been a conductor on some railroad, but not the defendant, stated that the Wabash rules were standard rules which had been adopted by 32 railroads, including the New York Central system, of which the defendant was said to have been a member. The defendant proved that it was not.a member of the New York Central system, and it objected to the use of the Wabash rules. The defendant was denied permission to show that it had not adopted the Wabash rules, and those rules, along with Lawrence’s interpretation of them, were admitted into evidence.

On appeal, the court agreed with the defendant that this constituted error. It stated:

“The effect of this ruling was simply to permit a witness, who had no knowledge whatever of what rules the appellant company was operating under, to testify that the appellant was operating under what was called “Standard Rules,” or such rules as had been adopted some time in the past, not by appellant but by the Wabash Railroad Company, and this notwithstanding the fact that upon notice appellant produced its own rules in court and offered them to counsel for appellee. The rules of the Wabash Railroad Company, and the elucidation thereof by this witness, were wholly incompetent evidence.” (249 Ill. App. 164, 173.)

The trial court’s admission of the Wabash rules was thus improper not only because it incorrectly suggested that the defendant operated under them, but also because, since the defendant had promulgated its own rules, those of the Wabash were not relevant.

We believe that a similar conclusion should be reached concerning the relevancy of safety rules, customs and practices of other railroads in this case. A railroad has, in general, a duty to establish safety rules for the guidance and protection of its employees. (Goodman v. Chicago, Burlington & Quincy R.R. Co. (1937), 289 Ill. App. 320, 7 N.E.2d 393, cert. denied (1938), 303 U.S. 640, 82 L.Ed. 1100, 58 S. Ct. 610.) Once these rules have been promulgated, the employees are entitled to rely upon them as the appropriate standard of conduct (Kurn v. Stanfield (8th Cir. 1940), 111 F.2d 469), unless they have been effectively nullified by the custom and practice of those employees. (Hval v. Southern Pacific Transportation Co. (1979), 39 Or. App. 479, 592 P.2d 1046.) Consequently, it has been held that a railroad’s safety rules or customs are admissible in an FELA action, either as evidence of the negligence of the employer (Coleman v. Gulf, Mobile & Ohio R.R. Co. (1958), 17 Ill. App. 2d 220, 149 N.E.2d 656), or as evidence of the contributory negligence of the plaintiff (Nickell v. Baltimore & Ohio R.R. Co. (1952), 347 Ill. App. 202, 106 N.E.2d 738; Schwartz v. Alton & Southern Ry. Co. (1976), 38 Ill. App. 3d 528, 347 N.E.2d 829), so as to diminish his recovery proportionately.

Neither the plaintiff nor the railroad disputes the admissibility of the rules and customs of the particular railroad which is the defendant. But the railroad argues that the rules and practices of other carriers are also probative of the plaintiff’s contributory negligence. In support of this theory, the railroad refers us to authorities in which such evidence was introduced against the defendant railroad. Crabtree v. St. Louis-San Francisco Ry. Co. (1980), 89 Ill. App. 3d 35, 411 N.E.2d 19; Campbell v. Chesapeake & Ohio Ry. Co. (1962), 36 Ill. App. 2d 276, 183 N.E.2d 736; Annot., 43 A.L.R.2d 618 (1955).

The rationale for admitting the customs and rules of other railroads against a defendant railroad is, however, entirely absent when that evidence is sought to be introduced against a plaintiff employee. Industry practice is the yardstick against which a railroad’s actions must be judged, and is the proper measure of its negligence, except when that industry practice is not reasonable. (Kuberski v. New York Central R.R. Co. (2d Cir. 1966), 359 F.2d 90, cert. denied (1967), 386 U.S. 1036, 18 L. Ed. 2d 600, 87 S. Ct. 1475.) A railroad, being an equal member of the railroad industry, may always exchange ideas with other railroads and adjust its safety practices according to technological and other advances.

The individual employee is not in a position to compare his work habits with those of employees of other railroads. He must conform his behavior either to the written safety rules promulgated by his employer or to the customs and practices observed by his fellow employees. To allow a defendant to hold a plaintiff to a higher standard of care than that which it prescribes for or tolerates from its employees would be to demand unreasonably prudent behavior from the plaintiff. The more logical rule is that when a railroad promulgates a safety rule, or permits a custom to exist, and the rule or custom specifically covers the plaintiff’s conduct, evidence of the rules or practices of other railroads is not admissible as proof of the plaintiff’s contributory negligence.

As an additional point of contention concerning the testimony on the wearing of safety gloves, the railroad argues that Frank Stevens was unqualified to interpret its own rule 1264. The railroad does not deny Stevens’ 30 years of power company experience, but instead asserts that his lack of qualification stems from his unfamiliarity with railroads in general and railroad safety rules in particular. It is claimed that the trial court should not permit a witness in an FELA case to testify about railroad customs and practices unless that witness has experience or is otherwise familiar with the railroad industry.

In Crabtree v. St. Louis-San Francisco Ry. Co. (1980), 89 Ill. App. 3d 35, 411 N.E.2d 19, an expert was deemed qualified to testify concerning the practice of railroad employees in lifting kegs of rail spikes. The court noted that even though the witness was not acquainted with the operations of the defendant, he was familiar with the customs and practices of three railroads and was thus properly permitted to testify. From this holding, the railroad contends that it should be a prerequisite to the admission of expert testimony under the Federal Employers’ Liability Act that the expert be from within the railroad industry.

We do not agree that Frank Stevens’ lack of knowledge of railroad practices should be a bar to his interpretation of rule 1264. Whether a witness is competent to provide expert testimony is a matter within the discretion of the trial court (Schwartz v. Alton & Southern Ry. Co. (1976), 38 Ill. App. 3d 528, 347 N.E.2d 829), and it was not abused in this case. Stevens did not purport to give an opinion about railroad customs and practices; he simply tendered his interpretation of a rule which was similar to rules he had encountered in his employment with utilities. Moreover, and perhaps most significantly, unlike many facets of railroad operation, which have no analogy to other industries, the installation and maintenance of power lines is common to many concerns, and especially to power companies. Stevens’ 20 years’ experience as a journeyman lineman followed by 10 years as a line superintendent qualifies him to interpret safety rules governing the wearing of safety gloves during line work, and his lack of experience with a railroad does not alter this conclusion.

It is further argued by the railroad that witnesses Hentz and Stevens should not have been permitted to testify that it was the practice at their respective utility companies to use crews of two linemen when elevated work was to be done. First, the railroad contends that this evidence is not relevant because there was no showing that the presence of an additional crew member would have prevented or minimized the plaintiff’s injuries. We agree with this assessment of that evidence, at least in part. It is certainly true, as a practical matter, that a larger work crew could not have prevented the plaintiff from making contact with the live wires, and to that extent evidence of the preferred size of the crew is not relevant. But if, upon remand, the plaintiff introduces evidence to show that his injuries were aggravated by any delay in treatment, or by his having to lower himself from his working position, and he shows that such a delay or the need to lower himself would not have occurred had another worker been present, then we believe that the question of the adequacy of the work crew would be properly at issue.

The railroad also challenges this testimony because the practice discussed by Hentz and Stevens is not of the railroad industry. Our attention is directed to Chicago, Rock Island & Pacific R.R. Co. v. Lint (8th Cir. 1954), 217 F.2d 279. There, the plaintiff was injured when cattle which were being unloaded from a boxcar lifted a gate on a loading ramp off of its hinges, and the falling gate, in turn, caused the plaintiff to fall. It was alleged that the pintle hinge, the type used on the gate, was unsafe for use on a loading ramp. The railroad introduced testimony that this hinge was used on loading ramps throughout its system, as well as on a number of farms. In evaluating this latter testimony, the court stated:

“There is evidence that many farm gates are [equipped with the pintle hinge] but the situation of restraining animals in large farm enclosures is far different from the manner of confining a large number of cattle in a narrow chute. It would seem that the circumstances surrounding the farmer are not similar, at least as a matter of law, to the circumstances surrounding the defendant.” 217 F.2d 279, 283.

Drawing an analogy from Lint, the railroad asserts that electrical maintenance crews which work for power companies operate under different conditions than do similar crews which work for railroads. It is argued that power company linemen, which work over large geographical areas, must be accompanied by other crew members because no other power company employees would be at hand in case of an accident. Railroad linemen, on the other hand, are said to work in limited areas, where assistance is readily available. Because of this distinction in circumstances, the railroad urges that evidence of power company practices concerning the number of men on a work crew should not have been admitted.

The railroad’s theory, which was not offered at trial, does not persuade us that evidence of the power company’s customs should be excluded. While certainly having a two-man crew is a practical necessity when working on elevated lines in an isolated area, it does not necessarily follow that this is the sole justification for the practice. Indeed, nowhere at trial was it suggested that power company line crews did not observe this custom even when working in the vicinity of other employees. It is plausible that the second man in the work crew is employed, at least partially, to assist his co-worker if he is rendered unconscious, as happened to the plaintiff here. This situation, of course, arises in the setting of the railroad yard as well as the isolated power line. To us, the circumstances of the power company’s line crew are not so dissimilar from those of the railroad line crew as to justify the exclusion of evidence concerning the customary size of the former crew. At most, any distinctions affect the weight of that evidence, not its admissibility.

Next, the railroad contends that the trial court should not have admitted into evidence certain pictures taken of the plaintiff during his recovery from the accident. It is argued that the photographs should have been excluded because they were not produced until trial, well after they were taken, and because they are gruesome. Of course, we need not consider the existence of any discovery violation, because the railroad knows of the photographs well in advance of the date of any new trial tú be held in this cause.

The decision to admit photographs depicting a plaintiff’s injuries rests within the discretion of the trial court. (LeMaster v. Chicago Rock Island & Pacific R.R. Co. (1976), 35 Ill. App. 3d 1001, 343 N.E.2d 65.) There is no suggestion that the pictures in question do not accurately depict the plaintiff’s injuries during the course of treatment he pursued. We have examined these photographs and find that the trial court’s decision to admit them into evidence was a proper exercise of its discretion and did not prejudice the defendant. De Rosa v. Albert F. Amling Co. (1980), 84 Ill. App. 3d 64, 404 N.E.2d 564.

The railroad’s remaining assignments of error pertain to certain jury instructions which it offered and which were refused or were given over the objection of the railroad. Three of these instructions concern the plaintiff’s FELA action against the railroad and three have to do with the railroad’s third-party suit against Baker. We will first discuss those instructions pertinent to the plaintiff’s case.

The railroad tendered Illinois Pattern Jury Instructions, Civil, No. 10.03 (2d ed. 1971) (hereinafter cited as IPI Civil), which reads:

“It was the duty of the plaintiff, before and at the time of the occurrence, to use ordinary care for his own safety. That means it was the duty of the plaintiff to be free from contributory negligence.”

The plaintiff’s objection to this instruction was sustained, and the railroad assigns this ruling as error.

Under the Federal Employers’ Liability Act, a plaintiff’s contributory negligence will not bar his recovery, but will only diminish it. (45 U.S.C. sec. 53 (1976).) Thus, it has been held that a jury instruction which misstates this principle is inappropriate in a FELA action, although it may be proper in an ordinary negligence suit. (Carter v. Atlanta & Saint Andrews Bay Ry. Co. (1949), 338 U.S. 430, 94 L. Ed. 236, 70 S. Ct. 226.) While IPI Civil No. 10.03 does not specifically state that contributory negligence would be a bar to the plaintiff’s recovery, we believe that it is inaccurate to instruct the jury that the plaintiff must be “free from contributory negligence.” This language could create the erroneous impression that judgment should be entered for the defendant if the plaintiff is contributorily negligent to any degree and therefore the court correctly refused this instruction. See Flanigan v. Burlington Northern, Inc. (8th Cir. 1980), 632 F.2d 880, cert. denied (1981), 450 U.S. 921, 67 L. Ed. 2d 349, 101 S. Ct. 1370; Seaboard Coast Line R.R. Co. v. Thomas (1972), 229 Ga. 301, 190 S.E.2d 898.

This court’s decision in Feigl v. Terminal R.R. Association (1975), 30 Ill. App. 3d 55, 332 N.E.2d 416, does not state otherwise. Although IPI Civil No. 10.03 was presented to the jury in that case and was not held to be error, the opinion shows that the plaintiff did not argue that IPI Civil No. 10.03 incorrectly stated the law of contributory negligence under the Federal Employers’ Liability Act. Moreover, the court held that the error complained of, namely the giving of IPI Civil No. 10.03 without IPI Civil No. 11.01, was harmless because the jury was properly instructed that contributory negligence could only serve to diminish or mitigate the plaintiff’s damages. We do not believe that the unstated and implied approval of IPI Civil No. 10.03 in Feigl is any authority for us to reject the plaintiff’s challenge to that instruction in this case. The proper instructions to the jury on the effects of contributory negligence in an injury case under the FELA are IPI Civil Nos. 160.02, 160.13 and 11.01 (see notes on use to IPI Civil No. 160.02), all of which the trial court gave here.

The railroad further contends that the trial court should have instructed the jury to reduce its award of damages for future pain and suffering to present worth. (Chiarello v. Domenico Bus Service, Inc. (2d Cir. 1976), 542 F.2d 883.) This is not the law under the Federal Employers’ Liability Act. McCray v. Illinois Central R.R. Co. (1957), 12 Ill. App. 2d 425, 139 N.E.2d 817; Flanigan v. Burlington Northern, Inc. (8th Cir. 1980), 632 F.2d 880, cert. denied (1981), 450 U.S. 921, 67 L. Ed. 2d 349, 101 S. Ct. 1370; Taylor v. Denver & Rio Grande Western R.R. Co. (10th Cir. 1971), 438 F.2d 351.

It is also asserted that the trial court should not have instructed the jury on the plaintiff’s theory that the railroad was negligent in failing to provide him with "sufficient assistance or help in performing his work.” We agree that any such dereliction could not have caused the plaintiff’s injuries, as we have discussed earlier. But, if the evidence on remand shows that this omission acted to aggravate those injuries in any way, then this theory is supported by the evidence and this instruction should be given.

Nor does the fact that the plaintiff may have acquiesced in Clyde Board’s decision to send Tony Bradford to another yard change our assessment of the instruction. Even if we assume that the plaintiff’s conduct can be characterized as some sort of assumption of the risks of working unaided, the appropriate remedy for the railroad would be to submit an instruction to that effect, rather than to request that the instruction on the railroad’s negligent conduct not be given.

The railroad’s remaining three jury instruction issues pertain to its third-party action against Baker. The first two of these arguments assign as error the refusal of the trial court to give the railroad’s instructions No. 18 and 19. These instructions, which are not from Illinois Pattern Jury Instructions, read as follows:

No. 18: Third party defendant, Baker Equipment Company has a non-delegable duty to provide a product which is reasonably safe. Said duty requires the manufacturer to adapt any and all devices necessary to make its product not unreasonably dangerous.
No. 19: There is no duty on Norfolk and Western Railway to incorporate appropriate safety devices.

An instruction similar to the railroad’s instruction No. 18 was given in Lundy v. Whiting Corp. (1981), 93 Ill. App. 3d 244, 252, 417 N.E.2d 154. This instruction read: “It is the duty of the manufacturer of a product to produce a product which is free from unreasonably dangerous conditions.” The court held that the instruction was a correct statement of the law (Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 326 N.E.2d 74), and that the giving of that instruction did not prejudice the manufacturer. Yet, the court “declined to endorse” the instruction for two reasons. First, the instruction referred to the manufacturer’s “duty,” and to focus upon the acts or omissions of a defendant, rather than the nature of the product (Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859) is inappropriate in a products liability action. Second, the instruction neglected to mention the equally correct proposition of law that a manufacturer has no duty to make a product incapable of causing injury. The court concluded that it would be preferable to avoid use of the instruction at issue and instead submit IPI Civil No. 400.01, which properly directs the jury’s attention to the defective character of the product.

The same two shortcomings which the court found with the given instruction in Lundy are also present in the railroad’s tendered instruction No. 18. Consequently, the trial court did not err in sustaining Baker’s objections to it, especially since a modified version of IPI Civil No. 400.01, as offered by the railroad, was given.

In a similar way, the railroad’s instruction No. 19 is also misleading in that it employs the term “duty” in the context of a products liability action. But more significantly, this instruction fails to mention the railroad’s nondelegable duty under the Federal Employers’ Liability Act to avoid negligence in providing its employees with reasonably safe equipment. (45 U.S.C. par. 51 (1976); Shenker v. Baltimore & Ohio R.R. Co. (1963), 374 U.S. 1, 10 L. Ed. 2d 709, 83 S. Ct. 1667; McCaffrey v. Illinois Central Gulf R.R. Co. (1979), 71 Ill. App. 3d 42, 388 N.E.2d 1062.) To the extent that the railroad’s instruction No. 19 suggests that the railroad did not have that duty, it is erroneous and was correctly refused.

Finally, the railroad states that Baker’s affirmative defense of assumption of the risk should not have been presented to the jury, first, because Baker did not amend its pleadings to include that defense until trial, and second, because the defense was not supported by the evidence. We need not discuss the timeliness of Baker’s amendment, but, as we have indicated earlier, the evidence at trial reveals a credibility issue' concerning the state of the railroad’s knowledge of the properties of the B — 10. Thus, assuming that the digger-derrick is unreasonably dangerous, that evidence presents a jury question of whether the railroad assumed the risks associated with that product. Baker’s affirmative defense was properly submitted to the jury.

In conclusion, the trial court’s order which denied the railroad full opportunity to investigate the statement given to claim agent Woods prejudiced the railroad in the presentation of its defense. For that reason, we must reverse both judgments against the railroad and remand the entire cause to the circuit court of Madison County. Should a new trial occur upon remand, it is to be conducted in accordance with our rulings on the admissibility of evidence and the submission of jury instructions, as set forth in this opinion.

Reversed and remanded.

KASSERMAN and HARRISON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MEJDA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT EISENBERG, Defendant-Appellant.
    First District (5th Division)
    Nos. 81—120, 81—200 cons.
    Opinion filed September 3, 1982.

      John M. Goldberg and Caroline Jaffe, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Richard J. Cosentino, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendant was sentenced to 12 months’ periodic imprisonment on pleas of guilty to charges of aggravated battery and unlawful restraint. Subsequently, the periodic imprisonment was revoked and defendant was resentenced to concurrent extended terms of 10 years and six years on the respective charges. Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 7—2.

Defendant on appeal asks this court to either vacate the extended-term sentence or, in the alternative, to reverse the judgments entered upon the underlying pleas of guilty, arguing that (1) application of the extended-term sentence under section 5 — 5—3.2(b)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5— 3.2(b)(1)) is unconstitutional since it violates the equal protection clause and the due process clause of the United States Constitution (U.S. Const., amend. XIV) in that it irrationally applies only where a prior offense was committed in Illinois; and (2) imposition of an extended term upon defendant under the circumstances at bar was impermissible because (a) his original plea was entered without prior notice that an extended-term sentence was a possibility, as required by section 5 — 8—2(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2(b)), and (b) his original plea was not knowingly and voluntarily entered, in violation of Supreme Court Rule 402. 73 Ill. 2d R. 402.

The relevant facts are as follows. In August 1978 defendant was charged by two indictments; No. 78 — 4837, charging him with the crime of unlawful restraint (Ill. Rev. Stat. 1977, ch. 38, par. 10 — 3(a)), and No. 78 — 4838, charging him with the crime of aggravated battery. (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4.) On October 11, 1979, upon defendant’s pleas of guilty to each of these charges, he was sentenced to a term of 12 months’ periodic imprisonment with certain conditions prohibiting his use of alcoholic beverages, and requiring his participation in an alcoholic treatment program.

Thereafter, in December 1979 the State filed a “Petition for Violation of Periodic Imprisonment,” alleging that defendant failed to report as required on November 18, 1979, and that as of December 6, 1979, he had failed to return to the Department of Corrections work release program. The petition also alleged that defendant had further violated the terms of his periodic imprisonment sentence by committing yet another crime, namely an aggravated battery as charged in indictment No. 79 — 8579.

After a hearing on the State’s petition held on October 31, 1980, the trial court found that defendant had violated the conditions of his periodic imprisonment sentence. The court was then informed by the prosecutor that in July 1979 defendant was convicted of aggravated kidnaping and aggravated battery, which crimes, the court. noted, were of the “same classification or greater than this case.” The court thereafter revoked the periodic imprisonment and imposed an extended-term sentence of 10 years’ imprisonment on the aggravated battery charge, with a concurrent six-year sentence for the unlawful restraint charge. Both sentences were imposed under the “extended term” statute.

Opinion

Defendant contends that the extended term of imprisonment must be vacated because his original guilty pleas were entered without notice to him of the possibility of imposition of such a sentence, under section 5 — 8—2 of the Unified Code of Corrections. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2.) This section provides in pertinent part:

“(b) If the conviction was by plea, it shall appear on the record that the plea was entered with the defendant’s knowledge that a sentence under this Section was a possibility. If it does not so appear on the record, the defendant shall not be subject to such a sentence unless he is first given an opportunity to withdraw his plea without prejudice.” Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2(b).

The instant record fails to show that defendant was so advised. Accordingly, defendant was not subject to an extended-term sentence at the time of his initial sentencing. Furthermore, since upon revocation of periodic imprisonment the court could impose only another sentence that was available at the time of initial sentencing, the defendant was not subject to the extended term at the subsequent revocation hearing. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 7—2(c); cf. People v. Brogan (1979), 76 Ill. App. 3d 957, 395 N.E.2d 408.) Accordingly, the extended-term sentence so imposed must be vacated.

The defendant has contended that the original pleas should also be vacated as not having been knowingly and voluntarily entered under Supreme Court Rule 402 (73 Ill. 2d R. 402). The State argues that defendant has waived this issue for purposes of review by failing to make it the subject of an appeal from the original conviction. We agree with the State’s position. An appeal from a probation revocation is generally limited to issues arising out of the revocation proceeding. (People v. Smith (1980), 87 Ill. App. 3d 526, 409 N.E.2d 157.) The notice of appeal pertaining to such proceedings cannot be construed as granting an appellate court either authority or jurisdiction to review the initial judgment of conviction. (People v. Susberry (1979), 68 Ill. App. 3d 555, 386 N.E.2d 361.) Defendant here has not filed a notice of appeal from the original judgment of conviction and the appeal before us is effective solely as to the extended-term sentence entered upon the order revoking periodic imprisonment. We see no need to distinguish, for purposes of waiver, between the probation revocation order and the instant order revoking the periodic imprisonment. Accordingly, we do not consider the question of whether there was inadequate admonishment prior to the entry of the guilty pleas at bar. See People v. Haak (1975), 26 Ill. App. 3d 1031, 325 N.E.2d 423.

Since we have held that defendant was not subject to sentencing under the “extended term” statute (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2), we need not consider his claim that application of the extended term under section 5 — 5—3.2 (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2) is unconstitutional.

For the foregoing reasons, the convictions and the revocations of periodic imprisonment are hereby affirmed, the order imposing extended-term sentences is vacated, and the cause is remanded for re-sentencing in a manner consistent with this opinion.

Conviction and revocation affirmed; sentence vacated and remanded.

SULLIVAN, P. J., and LORENZ, J., concur.


author: JUSTICE McNAMARA

text:
    BEATRICE ORRICO, Plaintiff-Appellant, v. BEVERLY BANK, Defendant-Appellee.
    First District (3rd Division)
    No. 81—1499
    Opinion filed September 1, 1982.

      James P. Chapman and Jerry A. Esrig, both of Chapman and Royce, Ltd., of Chicago, for appellant.
    Frank Glazer, Ltd., of Chicago (Frank Glazer, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Beatrice Orrico, appeals from the trial court’s entry of judgment notwithstanding the verdict of a jury that found defendant Beverly Bank (Bank) liable for the wrongful death of plaintiff’s son, Frank. The trial court ruled that the Bank owed no duty to the decedent after he left the premises and that the criminal act of a third person was an unforeseeable, intervening and independent act. Plaintiff contends on appeal that the trial court erred in ruling as a matter of law that the Bank’s undisputed negligence was not a proximate cause of decedent’s death. The Bank cross-appeals from the trial court’s post-trial ruling that it erred in excluding decedent’s brothers and plaintiff from the beneficiary class for purposes of recovery under the Wrongful Death Act. The facts are virtually undisputed.

At the time of decedent’s death by murder, on August 1, 1975, he was 31 years old. He had a history of several commitments to various mental institutions and he was receiving social security benefits for mental disability.

All relevant acts occurred within a small geographical area. Decedent’s parents were divorced and he resided with his father, who was on psychiatric disability, at 101st Street and Charles Street in Chicago. The Bank, where decedent had opened checking and savings accounts in late June, is located at 103d and Charles. Graver Park, where decedent had been seen before his murder, is located about three blocks from his residence. Decedent’s body was found U/a blocks from the park.

On June 30, 1975, decedent deposited a retroactive disability check for $4,500 into his savings account at the Bank. On July 23, 1975, Irene Saia, an officer of the Bank, called the police to obtain plaintiff’s unlisted telephone number. She then telephoned plaintiff to tell her that decedent had been in the Bank wanting to withdraw $4,000 to go to Hong Kong. Saia also stated that the check deposited was for disability and that decedent did not appear disabled. Discussing her fears about what could happen to decedent if he were given such a large amount of money, plaintiff told Saia that she did not want him to have the money. Saia suggested that plaintiff contact the Bank’s trust department. When plaintiff visited the trust department that week, an employee informed her that the Bank often acted as conservator for mentally disabled persons and that she should contact a lawyer to initiate conservator proceedings.

On July 29, through counsel, plaintiff petitioned the court for appointment of a conservator of decedent’s estate. She intended that the Bank act as conservator. The court set a date in August for the incompetency hearing, and immediately appointed plaintiff temporary conservator to collect. That same day plaintiff delivered the court order to the Bank. A copy of the order admitted into evidence bears the date and time-stamp of the Bank depicting its receipt on July 29 at 11:36 a.m.

On July 31 plaintiff saw decedent who informed her that he had just transferred $2,500 into his checking account and that he sent a check in this amount to his girlfriend in Seattle. Plaintiff called the Bank and stated to Lucille Graham, a banking counselor, that she had delivered the requisite court order to the Bank on July 29 and that decedent should not be permitted to make any transactions. Graham stated that she was unaware of any court order, and that there was no reason not to permit decedent to transact business. Later that day, Graham found the court order of July 29.

According to the Bank, it ordinarily time-stamped a court order appointing a conservator and immediately placed a restraint on the account without further consultation or investigation. From July 29 to August 1, no such restraint was placed on decedent’s account. The next afternoon, plaintiff visited the Bank and spoke to Graham. For the first time, Graham informed plaintiff that the court order was unsigned. Plaintiff returned to the Bank at about 5 p.m. with certified copies of her letters of office. Although plaintiff requested that an account immediately be opened, she was informed that an account would not be opened until the following Monday when someone from the legal department would be present.

At that time, decedent approached plaintiff in the Bank and complained loudly that she was trying to get his money. She departed, and decedent was permitted to withdraw $2,100 in one hundred dollar bills. Plaintiff testified without contradiction that she repeatedly expressed her concern for decedent’s safety were he given a large amount of money.

After decedent withdrew the money he purchased a bottle of wine and went to Graver Park. A spectator at a softball game there noticed decedent, a stranger to her, flashing a large stack of one hundred dollar bills to people at the park. Decedent then approached her and asked if she wanted some money. He departed and proceeded to display the money to others. The witness left the park at 6:30 p.m.

Decedent’s body was found near midnight with a gunshot wound at the back of his head. Decedent had no money on his person. A neighbor testified that she heard a shot, looked out her window and saw a white male, wearing a red tam, bend over decedent’s body and then run away. A homicide investigator called to the scene learned in his investigation that red-tammed youths loitered at the park. There was alcohol found in decedent’s body, but in an amount insufficient to be declared legally intoxicated.

At the close of plaintiff’s case defendant made a motion for a directed verdict alleging that, as a matter of law, the Bank owed no duty to decedent and that the intervening criminal acts of a third person were unforeseeable rendering the Bank’s conduct not the proximate cause of decedent’s death. The trial court stated that it believed the Bank owed a duty but that it would reserve its ruling as to the foreseeability issue. The court also ruled, as a matter of law, that the only next of kin entitled to recover under the Wrongful Death Act was decedent’s son, and excluded from the beneficiary class plaintiff and decedent’s two brothers. The jury returned a verdict against the Bank for $9,500.

Both sides submitted post-trial motions. The court granted the Bank’s motion for judgment n.o.v. In its order, the court recited that the Bank owed no duty to decedent after he left its premises and that the criminal act was an unforeseeable intervening act. The court then granted plaintiff’s motion, ruling that the decedent’s two brothers and plaintiff should have been included in the kin class, and contingently granted plaintiff a new trial on damages if this court reversed its grant of a judgment n.o.v.

The question of duty is one of law. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617.) We believe the trial court erred in ruling that the Bank owed no duty to decedent after he left its premises. We do not believe that this case falls into the category of a landowner’s duty to warn of or make safe dangerous conditions on his premises; rather, the case is governed by the more general principle that a defendant owes a duty not to increase forseeable risk of harm to another. (Prosser, Torts sec. 53 (4th ed. 1971).) But this duty to act with reasonable care does not, as plaintiff suggests, extend to the world at large. Rather it is defined and limited by various considerations such as the relation between the parties, the gravity and foreseeability of the harm, the utility of the challenged conduct and the burden of guarding against the injury. Lance v. Senior (1967), 36 Ill. 2d 516, 224 N.E.2d 231; Ortiz v. City of Chicago (1979), 79 Ill. App. 3d 902, 398 N.E.2d 1007; Prosser, Torts secs. 31, 43, 53 (4th ed. 1971).

We believe it is clear, under the present facts and circumstances, that the Bank owed a duty to decedent because of its relationship to him. The Bank’s relationship with plaintiff, created by the court order giving her the right to conduct all of decedent’s financial affairs, placed decedent in such a position to the Bank, which held his funds, that the Bank owed him a duty not to utilize his funds in a manner which would increase the risk of danger to him. We therefore reject the Bank’s privity-type argument that the order created only a duty running from the Bank to the conservator, for the scope of the duty is not mechanically determined by privity. (Cf. Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656.) Nor do we believe that the duty to decedent expired when he stepped off the Bank’s premises with the funds in his hands. The duty here does not rest on decedent’s status as invitee but instead stems from the tripartite relationship of decedent, the conservator, and the Bank which held his funds. The conservator-Bank relationship was created by the court for decedent’s welfare, and as far as the Bank need concern itself, it should have mewed the appointment as a judicial determination, however temporary, that decedent’s welfare depended on the cessation of his control over his funds. The conduct of the Bank in paying out funds to an incompetent in contravention of a court-appointed conservator’s demands undermines the societal interests protected by such devices as guardianship and conservatorships.

The burden of the Bank to refrain from the challenged conduct was minimal. Where, as here, a court determines that a person is incompetent to handle his money, the Bank is free from any burden of ascertaining an individual’s capacities. Indeed, the Bank under such circumstances need only carry out ministerially the court order.

We believe the risk of harm to decedent was foreseeable. The court order alone provided a basis to foresee some risk that an incompetent carrying over $2,000 in one hundred dollar bills could be robbed. Even if the harm foreseen is to property and the harm suffered in fact is to the person, the distinction should not be dispositive. (Prosser, Torts sec. 43, at 259-60 (4th ed. 1971).) Moreover, we cannot say, as a matter of law, that it is unforeseeable that an incompetent carrying a large sum of money could suffer physical injury during the course of a foreseeable robbery. Several factors point to the foreseeability of risk of harm to decedent if given a large sum of cash: the Bank’s own initial suspicions of decedent which prompted it to enlist the police to contact plaintiff, plaintiff’s repeated communication with Bank personnel explaining her fear for decedent’s safety and his background of mental instability, corroborated by his deposit of a disability check and the court appointment of plaintiff as conservator, and the fact that the appointment occurred at the Bank’s suggestion. We therefore hold that the Bank owed a duty to decedent.

The cases cited by the Bank in support of its contention that it had no duty are inapposite. In each the courts merely held that no duty exists to an invitee to accede to criminal demands. (Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill. 2d 95, 306 N.E.2d 39; Bance v. Crawford Savings & Loan Association (1980), 80 Ill. App. 3d 491, 400 N.E.2d 39.) These decisions represent an appropriate weighing of the factors involved in the duty issue, for there is a strong societal interest in not inducing criminal activity by acceding to criminal demands, even at the cost of harm to an individual. No such interest is at stake in the present case. The court in Altepeter v. Virgil State Bank (1952), 345 Ill. App. 585, 104 N.E.2d 334, merely held that there were no facts surrounding a particular bank robbery when the plaintiff-customer was in the bank which would make the robbery foreseeable, and that the bank need not anticipate generally criminal acts by third persons to others on its premises. The case is clearly inapplicable to the present case where a bank affirmatively increases the risk of harm to others.

We next address the related question whether the intervening criminal act was an unforeseeable independent act relieving the Bank of liability for its negligence. The intervening criminal act of a third party does not relieve the first negligent actor of liability if the intervention was or should have been foreseen by the first actor even though the precise injury was not foreseeable. (Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 50 N.E.2d 497.) Although this principle is often applied in terms of causation, Prosser states that “[i]n its essence, however, it becomes again a question of the extent of the defendant’s original obligation; ***. It is rather one of the policy as to imposing legal responsibility.” (Prosser, Torts sec. 44, at 270 (4th ed. 1971).) The issue of foreseeability is at times a question for the court and “if varying inferences are possible, a question for the jury.” (Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 81, 117 N.E.2d 74.) Since we have earlier stated that we cannot hold, as a matter of law, that it was unforeseeable for decedent to be robbed, we believe this was a question properly submitted to the jury. Mrzlak v. Ettinger (1975), 25 Ill. App. 3d 706, 323 N.E.2d 796.

Applying the rule of Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, we believe the trial court erred in entering judgment n.o.v. in the present case. We cannot say that the evidence presented when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on the evidence could ever stand. (For decisions holding that the intervention of a criminal act did not relieve the negligent actor of liability, see Ney v. Yellow Cab Co. (negligent party who left keys in car ignition held liable for damage to other vehicle struck by thief in the first vehicle); Neering v. Illinois Central R.R. Co. (railroad liable for negligence when plaintiff was assaulted at station late at night where defendant had knowledge of “potential source of danger” to plaintiff); Danile v. Oak Park Arms Hotel, Inc. (1964), 55 Ill. App. 2d 2, 203 N.E.2d 706 (hotel liable for negligence when bellboy raped plaintiff); Liberty National Life Insurance Co. v. Weldon (1957), 267 Ala. 171, 100 So.2d 696 (insurance company liable for wrongful death in negligently issuing a policy to a beneficiary with no insurable interest, when beneficiary thereafter murdered insured).) See also Hetherton v. Sears, Roebuck & Co. (3d Cir. 1979), 593 F. 2d 526; Hicks v. United States (D.C. Cir. 1975), 511 F. 2d 407; McLeod v. Grant County School District No. 128 (1953), 42 Wash. 2d 316, 255 P. 2d 360.

We are aware of a line of decisions invoking the principle that the first actor is not liable if his negligent act created merely a condition upon which the intervenor acted. (See, e.g., Felty v. General Telephone Co. (1977), 47 Ill. App. 3d 427, 362 N.E.2d 43.) This principle applies, however, only “where the forces set in operation by the defendant have come to a rest in a position of apparent safety, and some new force intervenes.” (Prosser, Torts sec. 42, at 248 (4th ed. 1971); Reed v. Danville Concrete Products Co. (1981), 102 Ill. App. 3d 205, 429 N.E.2d 605.) It is inapplicable to the present case.

The Bank maintains for the first time on appeal that the duty, which purportedly runs only to the conservator, is limited to the amount wrongfully paid. (Ill. Rev. Stat. 1979, ch. 26, par. 4 — 103(5).) We have stated that the Bank owes a duty, not based on privity, to decedent thus obviating our need to address whether the conservator’s rights are restricted by the statute, for plaintiff sues as next of kin, and not as conservator. Moreover, the warranty approach of the Commercial Code is particularly unsuited for redress of personal injuries. (Cf. Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443.) And even under the Code, section 4— 103(5) is inapplicable since we believe that the present case is distinct from negligence in the “handling of an item” (see Owens v. Andrews Bank & Trust Co. (1975), 265 S.C. 490, 220 S.E.2d 116), and that section 4 — 103(5) does not specifically displace a tort action for personal injuries. See Ill. Rev. Stat. 1979, ch. 26, par. 1 — 103.

We also reject the Bank’s argument that plaintiff failed to prove decedent’s use of ordinary care. The essence of plaintiff’s complaint was that the Bank was or should have been aware that the nature of decedent’s mental impairment would cause him to act irrationally. The matter of decedent’s conduct was properly left to the jury, and we will not disturb that determination. Dezort v. Village of Hinsdale (1976), 35 Ill. App. 3d 703, 342 N.E.2d 468.

The Bank has filed a cross-appeal from the trial court’s ruling that it erred in excluding plaintiff and decedent’s brothers from the beneficiary class for purposes of recovery under the Wrongful Death Act. The Bank, however, has not presented any arguments in its brief on the propriety of the contingent ruling of the trial court on that issue. Consequently, the issue is waived. 73 Ill. 2d R. 341(e)(7).

For the reasons stated, the order of the circuit court of Cook County granting judgment n.o.v. in favor of the Bank is reversed, and the cause is remanded for a new trial on damages consistent with the trial court’s contingent ruling on plaintiff’s post-trial motion.

Affirmed in part; reversed in part and remanded.

WHITE, R J., and RIZZI, J., concur.


author: PRESIDING JUSTICE WHITE

text:
    EDMOND GORA, Plaintiff-Appellant, v. 7-11 FOOD STORES et al., Defendant-Appellees.
    First District (3rd Division)
    No. 81—144
    Opinion filed September 8, 1982.

      Richard J. Barr, Jr., of Chicago, for appellant.
    Gorham, Metge, Bowman & Hourigan, of Chicago, for appellees.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court.

This appeal presents the question, is a dramshop keeper who sells liquor to a minor in violation of section 12 of article VI of the Dram-shop Act (Ill. Rev. Stat. 1979, ch. 43, par. 131) liable to the minor for damages the minor suffers as a result of his intoxication caused by the liquor?

Edmond Gora, in his amended complaint, alleged that he was 17 years old when he bought alcoholic liquors from a convenience food store operated by defendants, 7-11 Food Stores and the Southland Corporation; that the liquors caused his intoxication; that he became unconscious in a bank of snow; and that he suffered frostbite and related injuries necessitating amputation of parts of his right hand, extensive skin grafts and related medical treatment.

On these facts Gora in count I seeks recovery under section 14 of article VI of the Dramshop Act (Ill. Rev. Stat. 1979, ch. 43, par. 135), against the named defendants and the unknown owners and lessors of the premises where the store is located. In count II he pleads common law negligence, alleging that the seller of the liquor, through its agents, knew or should have known that he was not of lawful age to buy liquor, and that the sale was negligently made and resulted in the damages suffered. The third count of the amended complaint pleaded the violation of local ordinances and section 12 of article VI of the Dramshop Act (Ill. Rev. Stat. 1979, ch. 43, par. 131) in selling liquor to him as prima facie evidence of negligence and as fixing his status as a member of a protected class, giving him a cause of action for injuries proximately caused by the violation. Defendants filed a motion to dismiss the amended complaint which the trial court granted. This appeal followed.

In his brief Gora conceded that he has no right of action under the Dramshop Act, which is restricted in its application to situations where third parties suffer damages as a result of the actions of an intoxicated person.

We then address the issue raised by count II, does the plaintiff have a common law action? He relies on article I, section 12, of the Illinois Constitution which provides: “Every person shall find a certain remedy in the law for all injuries and wrongs which he receives to his person, privacy, property or reputation.” From this, plaintiff argues that where no statutory cause of action is provided to cover a particular wrong, the constitution mandates an examination of the common law to see if a remedy can be found there. This same contention was raised in Cunningham v. Brown (1961), 22 Ill. 2d 23, 174 N.E.2d 153, where plaintiff claimed a common law right of action against a supplier of liquor. The court rejected his claim, observing: “No case has been cited by the plaintiff nor have we found one where, prior to the enactment of the original Dram Shop Act of 1872 *** recovery was sought from a supplier of alcoholic liquor for damages inflicted by an intoxicated person or resulting from the intoxication.” (22 Ill. 2d 23, 25-26.) Similarly, we have found no Illinois case before or after Cunningham, and none has been cited, which holds that such a common law right of action exists, and we repeat the words of that opinion regarding the Dramshop Act:

“The historical background of the Act seems to disclaim any notion that it was intended to compliment a common-law remedy against the tavern owners and operators. We would be delving in judicial metaphysics if we were to say that the legislature intended to provide a remedy in addition to a common-law remedy which existed but had not as yet been declared by the courts.” 22 Ill. 2d 23, 28.

In addition to this historical basis for denying plaintiff’s claim of a common law remedy, Cunningham also contains a legal argument which dictates the same conclusion and is equally applicable here to count III of the amended complaint. Generally, the basis for denying recovery against a seller of liquor by the buyer who becomes intoxicated and thereby suffers injury to his person or property is that the drinking of the liquor, not the selling, is the proximate cause of the intoxication. Plaintiff here argues that if there is such a rule, an exception exists where the buyer is a member of a class of persons whose purchase of liquor is statutorily forbidden because their ability to handle liquor sensibly is questionable. Plaintiff as a minor was a member of such a class. The plaintiff in Cunningham also argued that when the buyer is a member of a protected class and this is known or should have been known by the seller, then the sale and the consumption of the liquor are merged and the sale becomes the proximate cause of the intoxication. The Illinois Supreme Court rejected this argument:

“The plaintiffs’ argument has some merit, and if no more were involved than laying down a new rule of liability it would warrant more serious consideration. But the lack of common-law precedent for such liability motivated our legislature, as well as the legislatures in 21 other States, to create such liability. [Citation.] The remedy we are asked to recognize would, except as to recoverable damages, be almost coincidental with the remedy provided in section 14. Section 19 of article II of the constitution does not require the courts to recognize a remedy when the legislature has already provided such remedy even though the statutory remedy be limited as to recoverable damages. [Citation.]
We hold that section 14 of article VI of the Liquor Control Act provides the only remedy against tavern operators and owners of tavern premises for injuries to person, property or means of support by an intoxicated person or in consequence of intoxication.” (22 Ill. 2d 23, 30-31.)

We held recently in Lowe v. Rubin (1981), 98 Ill. App. 3d 496, 424 N.E.2d 710, that the extension of liability for the sale or giving away of liquor beyond the historical limits of the Dramshop Act should be the function of the legislature, not the court.

We follow Cunningham, adhere to Lowe and answer in the negative the question posed by this appeal. The judgment of the circuit court of Cook County is affirmed.

Affirmed.

McNAMARA and RIZZI, JJ., concur.


author: JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARBARA BOYKIN, Defendant-Appellant.
    First District (4th Division)
    No. 81—2742
    Opinion filed September 9, 1982.

      James J. Doherty, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lester M. Joseph, and Christopher E. K. Pfannkuche, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE ROMITI

delivered the opinion of the court:

The sole issue in this case is whether a person charged with a misdemeanor and found guilty after a bench trial is eligible for supervision under section 5 — 6—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—1(c)), which provides:

“(c) The court may, upon a plea of guilty or a stipulation by the defendant of the facts supporting the charge or a finding of guilt, defer further proceedings and the imposition of a sentence, and enter an order for supervision of the defendant if the defendant is not charged with a felony and having regard for the circumstances of the offense, and the history, character and condition of the offender, the court is of the opinion that:
(1) the offender is not likely to commit further crimes;
(2) the defendant and the public would be best served if the defendant were not to receive a criminal record; and
(3) in the best interests of justice an order of supervision is more appropriate than a sentence otherwise permitted under this Code.
The court shall consider the statement of the prosecuting authority with regard to the standards set forth in this Section.”

The trial court, bound by People v. Bodine (1981), 97 Ill. App. 3d 42, 422 N.E.2d 256, held that defendant-appellant, Barbara Boykin, was not eligible and sentenced her to six months’ misdemeanor probation. We conclude that Bodine erred in holding supervision unavailable and reverse and remand the case to the trial court for reconsideration.

“ ‘Supervision’ means a disposition of conditional and revocable release without probationary supervision, but under such conditions and reporting requirements as are imposed by the court, at the suecessful conclusion of which disposition the defendant is discharged and a judgment dismissing the charges is entered.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 1—21.) Prior to 1976 supervision was commonly given by the trial courts both to defendants who pled guilty and to those who were found guilty after trial. (Compare People v. Breen (1976), 62 Ill. 2d 323, 342 N.E.2d 31.) In 1976 the Illinois Supreme Court in Breen held that the courts had no authority to place a defendant on supervision and referred the matter to the legislature. The legislature acted promptly. Both houses introduced bills (Senate Bill 1997 and House Bill 3954). The Senate bill, which after being rewritten by committee bore much of the wording of the House bill, was finally adopted as Public Act 79 — 1334 (1976 Ill. Laws 621) and became law on August 2, 1976. At that time the provision in question read “The court may, upon a stipulation by the defendant of the facts supporting the charge or a finding of guilt, defer further proceedings ***.” Later in 1977 the statute was amended to eliminate a provision that the defendant had to wait three years before petitioning for ex-pungement of the records of his or her arrest. The amendment also added the language “upon a plea of guilty or” to the above-quoted language. (1977 Ill. Laws 3262, 3303.) Trial courts commonly interpreted the statute as permitting the disposition of supervision after trial and as not requiring a guilty plea or stipulation of guilt (Brady, Major Traffic Charges, 70 Ill. B.J. 292, 298 (1982); ISBA Newsletter Judicial Administration Section, vol. 12, No. 3, editor’s note, at 6 (Sept. 1981)), until the fourth district held to the contrary in People v. Bodine (1981), 97 Ill. App. 3d 42, 422 N.E.2d 256. The Illinois Supreme Court did not review Bodine but in Fitzsimmons v. Walter (Ill. S. Ct. Nov. 24, 1981) Docket No. 55795, and Fitzsimmons v. Hayton (Ill. S. Ct. Nov. 24, 1981) Docket No. 55796, it entered supervisory orders mandating the trial judge to follow the controlling authority of Bodine.

I

This court is not bound by the decisions of the fourth district. (Elliott v. Willis (1980), 89 Ill. App. 3d 1144, 412 N.E.2d 638.) The State, however, argues that we are bound by the supreme court’s supervisory orders in Fitzsimmons. Fitzsimmons was not a decision of the Hlinois Supreme Court on the validity of Bodine. All it did was issue an ex parte order to the trial judge to follow Bodine because appellate court decisions are binding on circuit courts until overturned. Elliott v. Willis (1980), 89 Ill. App. 3d 1144, 412 N.E.2d 638; People v. Spahr (1978), 56 Ill. App. 3d 434, 371 N.E.2d 1261, appeal denied (1978), 71 Ill. 2d 605.

II

The State argues that the statute means the trial court may only enter an order of supervision upon (1) a plea of guilty or (2) a stipulation by the defendant of the facts (a) supporting the charge or (b) a finding of guilt. Bodine adopted that construction by rewriting the statute to read “(1) when a defendant pleads guilty, or (2) when a defendant stipulates to either the facts supporting the charge or to the facts supporting a finding of guilt.” (97 Ill. App. 3d 42, 44, 422 N.E.2d 258.) The defendant contends that the statute means supervision is proper upon (1) a plea of guilty or (2) a stipulation by the defendants of the facts supporting the charge or (3) a finding of guilt. If the statute did in fact read as rewritten by the Bodine court then we would agree with Bodine and the State that the statute is unambiguous and does not permit supervision if the defendant refuses to plead guilty or stipulate to the facts. But it does not. We find that the statute as it is actually written is reasonably susceptible to either interpretation. In other words, it is ambiguous. Since it is ambiguous, it is appropriate for this court to examine the legislative history of the statute to determine the legislative intent. People ex rel. Hanrahan v. White (1972), 52 Ill. 2d 70, 285 N.E.2d 129, cert. denied sub nom. Splinter v. Hanrahan (1972), 409 U.S. 1059, 34 L. Ed. 2d 511, 93 S. Ct. 562; Acme Fireworks Corp. v. Bibb (1955), 6 Ill. 2d 112, 126 N.E.2d 688; Lubezny v. Ball (1944), 322 Ill. App. 78, 53 N.E.2d 988, rev’d on other grounds (1945), 389 Ill. 263, 59 N.E.2d 645; Houghton Mifflin Co. v. Continental Illinois National Bank & Trust Co. (1938), 293 Ill. App. 423, 12 N.E.2d 714; People v. Graves (1922), 224 Ill. App. 235, aff'd (1922), 304 Ill. 20, 136 N.E. 542; 73 Am. Jur. 2d Statutes secs. 169-71, 173 (1974).

As already noted the original 1976 Act was actually a compromise between two bills, Senate Bill 1997 and House Bill 3954. The basic difference between them, as the legislature itself saw the problem was that the House required the consent of the prosecutor before the judge could give supervision and the Senate did not. (See for example, 79th Illinois General Assembly, Transcript of House Proceedings, House nonconcurrence of Senate Bill 1997, June 28, 1976, at 129, 131.) It is clear from the discussions that both bills were introduced to codify what the actual practice was prior to the supreme court decision in Breen, which in fact did allow supervision after a trial and finding of guilt.

Senate Bill 1997 read “Whenever a person pleads guilty or is found guilty of any offense ***.” At the third reading of the bill, the then Senator Daley, its sponsor, described it:

“Mr. President and fellow Senators. This bill permits the sen-tenting of an individual who has pled or is found guilty of a misdemeanor or a violation of the Illinois Vehicle Code to a term of court supervision. The term shall not exceed two years and may include such terms as the court deems appropriate. The discharge and dismissal does not constitute a conviction for the purpose of the Illinois law. ***
* * *
SENATOR DALEY:
I...I think you have this...this bill deals with a person pleads guilty or is found guilty. *** This is where he pleads guilty and he is found guilty. In other words, the defendant pleads guilty or in a trial is found...find...found guilty.
* * *
Senator Mitchier, I am also in favor of capital punishment, not on misdemeanors or traffic offenses. I...I, you know...but in regards to this, the defendant pleads guilty and is found guilty. Then in the discretion of the court, then they can place him on supervision. There is a finding. He pleads guilty or he’s found guilty.
* * *
No, my bill allows that a judiciary to place the defendant after he pleads guilty or is found guilty on supervision.” 79th Illinois General Assembly, Transcript of Senate Proceedings, Third Reading of Senate Bill 1997, June 23, 1976, at 4-8.

The language of the statute “facts supporting the charge or a finding of guilt” actually came from House Bill 3954. It is clear from the debates in the House that the language “facts supporting the charge” was merely intended to replace “a plea of guilty” and not to change the meaning of “a finding of guilt.”

“Getty: ‘Committee Amendment #1 had the language after a plea of guilty or a finding of guilty. Since this is supervision it was felt and discussed in Committee but the Amendment was not prepared that it would be (unintelligible) to have the language upon a stipulation by the defendant of the facts supporting the charge or a finding of guilty.’
Speaker Redmond: ‘Mr. Clerk, that’s 3954.’
Shea: ‘Yeah, that’s where I’m confused a little bit. Now we’re back on a Bill to set up supervision. Is that correct?’
Getty: ‘That’s correct.’
Shea: ‘All right. Now what did Amendment #1 do to the Bill?’
Getty: ‘Amendment #1 had the language upon a plea of guilty or a finding of guilty.'
Shea: ‘And why are you tabling that Amendment?’
Getty: ‘In favor' of the language “upon a stipulation of the defendant of the facts supporting the charge.” “A plea of guilty” would have a problem.’
Shea: ‘Why?’
Getty: ‘Because we’re dealing here with not a...a probationary situation but the entry of an order of supervision.’ ” 79th Illinois General Assembly, Transcript of House Proceedings, 2d Reading of House Bill 3954, June 8, 1976, at 10-11.
“Schlickman: ‘Mr. Speaker, Members of the House, this is an Amendment that is agreed to by the Sponsor in lieu of Committee Amendment #1. It’s an Amendment that was worked out through the cooperation of the Assistant State’s Attorney of Cook County. Specifically what it does, Mr. Speaker, is to provide that supervision may be granted in the event of a stipulation by the defendant of the facts supporting the charge, rather than upon a plea of guilty. Specifically or practically what this does, Mr. Speaker, is simply to restore the state of the law as it existed to prior to the Supreme Court Decision of the People versus Green and I move for its adoption.’
* * *
Fleck: ‘Well, would you explain the Amendment again? Maybe I misunderstood you.’
Schlickman: ‘What the Amendment does is to provide that as a condition for supervision, there must be either a stipulation by the defendant of the fact supporting the charge or a finding of guilt. Amendment #1, instead of having a stipulation, required a plea of guilty.’
* * *
Houlihan: ‘So, the only thing that Amendment #2 does is provide that supervision may be granted...upon the stipulation that the other conditions which are in the Bill are met.’
Schlickman: ‘What Amendment #2 is...is to simply substitute the stipulation of the fact...for a plea of guilty.’
Speaker Redmond: ‘Representative Maragos.’
Maragos: ‘I’m sorry, Mr. Schlickman, I did not understand the full colloquy between you and Representative Houlihan. What is the purpose of your Amendment? Will you please explain it again?’
Schlickman: ‘The Bill, as it was introduced, provided that the court would have the authority to grant supervision if it had been consented to by the State’s Attorney. Amendment #1 provided that as a condition for supervision there should not only be the consent of the State’s Attorney, but that there be a plea of guilty by the defendant, or in the alternative a finding of guilt by the judge. What Amendment #2 is, simply...What Amendment #2 simply does is to substitute for the plea of guilty, a stipulation of fact by the defendant, so that if there is subsequently a violation of supervision, the judge could enter, automatically, a judgment against the defendant without the defendant having the opportunity of arguing the fact in the trial.’
* * *
Duff: ‘But, you’re still allowing a plea of guilty? Is that correct? I mean, is it an alternative, and not a substitution? Is that...’
Schlickman: ‘It’s an alternative.’
Duff: ‘Oh. And, the other alternative is still there?’
Schlickman: ‘Is the finding of guilt either upon a plea of guilty or upon a trial.’ ” 79th Illinois General Assembly, Transcript of House Proceedings, 2d Reading of House Bill 3954, June 9, 1976, at 50-53.

Thus it appears clear that both houses intended to produce a bill which permitted supervision in cases where a defendant had not pled guilty but instead had been found guilty. The committee in reworking the bill to resolve conflicts would have had no reason to alter this clear and common intent. And there was no suggestion in either house when the committee report of Senate Bill 1997 was discussed that the power of a court to give supervision to a defendant who does not plead guilty had been eliminated from the statute. See 79th Illinois General Assembly, Transcript of House Proceedings, June 30, 1976, at 255-63; 79th Illinois General Assembly, Transcript of Senate Proceedings, June 30, 1976, at 72-74.

After the statute was enacted it was immediately understood as permitting supervision even though the defendant did not plead guilty. As the eminent Judge Harold W. Sullivan stated in his article Supervision Comes to All of Illinois, 65 Ill. B. J. 190, 191 (1976):

“While most supervisions will be the result of a plea bargain and while many courts will be reluctant to grant supervision over the objection of the state or to a defendant who testifies falsely at is trial, still the statute does not require the defendant to plead guilty to qualify for supervision.”

As already noted the trial courts so interpreted the statute and gave supervision after finding a defendant guilty; the State has pointed to no instance in which it protested such an award by filing an appeal until after Bodine was decided.

The original statute was amended in 1977 to, inter alia, add the language “upon a plea of guilty or.” (1977 Ill. Laws 3262, 3303.) However in the House debates it was noted that besides eliminating the 3-year requirement for expungement “certain technical changes are made to the Bill.” (80th Illinois General Assembly, Transcript of House Proceedings, Third Reading of Senate Bill 228, June 15, 1977, at 170.) Thus it appears that the legislature by adding the words “upon a plea of guilty” did not intend to alter the meaning of the rest of that sentence.

Ill

The State contends that supervision cannot be given after a trial and a finding of guilty because another statute provides: “(a) When a defendant is placed on supervision, the court shall enter an order for supervision specifying the period of such supervision, and shall defer further proceedings in the case until the conclusion of the period” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—3.1), arguing that after a trial there are no further proceedings to defer. Defendant correctly points out that this is not accurate since before sentencing the Criminal Code of 1961 requires a sentencing hearing. Ill. Rev. Stat. 1981, ch. 38, par. 1005-4-1(a).

IV

Citing instances in which variations of the term “finding of guilt” are used to describe the result of a bench trial as opposed to the verdict in a jury trial (see Ill. Rev. Stat. 1981, ch. 38, par. 116— l(a)(b)), the State contends that this statute, if construed as defendant contends it should be, would apply only to bench trials and thus would deny equal protection of the law to defendants choosing jury trials. We need not reach this issue for we are concerned here with the denial of supervision following a bench trial. Moreover it is questionable whether the State, which would not be injured by this alleged denial of equal protection, has standing to raise this issue. (See People v. Bombacino (1972), 51 Ill. 2d 17, 280 N.E.2d 697, cert. denied (1972), 409 U.S. 912, 34 L. Ed. 2d 173, 95 S. Ct. 492; People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 332 N.E.2d 649.) But in any event our duty in construing this statute is to construe it, if possible, in a manner that would not raise doubts as to its constitutional validity. (People v. Scheib (1979), 76 Ill. 2d 244, 390 N.E.2d 872; People v. Nastasio (1960), 19 Ill. 2d 524, 168 N.E.2d 728.) Clearly for the purposes of this statute the term “finding of guilt” is broad enough to include adjudications of guilt by a judge or jury. Accordingly, we find no merit to the State’s contention.

V

In light of our conclusion that the statute does not force a defendant to waive his or her right to a trial in order to receive supervision we need not consider the argument of amicus curiae that such a requirement would be unconstitutional. (See People v. Sivels (1975), 60 Ill. 2d 102, 324 N.E.2d 422; People v. Moriarty (1962), 25 Ill. 2d 565, 185 N.E.2d 688; United States v. Stockwell (9th Cir. 1973), 472 F.2d 1186, cert. denied (1973), 411 U.S. 948, 36 L. Ed. 2d 409, 93 S. Ct. 1924; Thomas v. United States (5th Cir. 1966), 368 F.2d 941.) Suffice it to say, however, that we do not find Corbitt v. New Jersey (1978), 439 U.S. 212, 58 L. Ed. 2d 466, 99 S. Ct. 492, relied upon by the State, applicable since in Corbitt the defendant was subject to the same possible sentence whether or not he pleaded not guilty.

Since the trial court denied supervision in the belief it was required to do so, we vacate the judgment of the trial court and remand the cause for reconsideration by the court.

Judgment vacated, remanded for reconsideration.

JOHNSON, P. J., and LINN, J., concur.