Opinion

Krotke v. Chicago, Rock Island & Pacific Railroad

  • 26 Ill. App. 3d 493
  • 327 N.E.2d 212
  • 1975 Ill. App. LEXIS 3522
Court
Appellate Court of Illinois
Filed
Feb 6, 1975
Status
Published
Author
McNAMARA
On the bench
McNAMARA
Cited by
18 cases
Authority
More cited than 13.1%

The opinion

Mr. JUSTICE McNAMARA delivered the opinion of the court:

We have allowed plaintiff’s petition for rehearing, to which defendant has filed an answer, and, in turn, plaintiff has filed a reply. Plaintiff has challenged all of our holdings. However, we wish to comment only on his contention that we erred in deciding that the case did not come within the doctrine of res ipsa loquitur.

Plaintiff has urged that we have erroneously rejected the use of circumstantial evidence in a res ipsa case, and that we are requiring direct proof of impact between plaintiff and the train. However, our holding is based on a finding that the circumstantial evidence adduced, when viewed in the light most favorable to plaintiff, does not provide a reasonable basis for the inference that defendant’s instrumentality caused plaintiff’s injury. No evidence was offered, circumstantial or direct, to show that it was physically possible for plaintiff to have been struck by the train. There was an attempt to establish a causal relationship between the train and the injury when plaintiff showed that there were protrusions along the side of the railroad cars. This fact was not developed into a circumstance sufficient to support an inference that such a protrusion or any part of the train struck plaintiff.

The res ipsa inference of negligence may be based on another inference only if the circumstantial evidence supporting the initial inference is deemed strong enough to justify the second conclusion. (See Lindroth v. Walgreen Co. (1950), 407 Ill. 121 , 94 N.E.2d 847 ; E. K. Wood Lumber Co. v. Anderson (9th Cir. 1936), 81 F.2d 161 , cert. denied (1936), 297 U.S. 723 .) In the present case the fact of the injury, combined with the proximity of the train, is not enough to support the double inference that the train caused the injury and defendant was negligent. The claimed cause of the injury was the passing train, yet the evidence failed to show that the accident could have occurred in the manner alleged. In fact, the evidence indicated that such an occurrence was physically impossible.

In Ohligschlager v. Proctor Community Hospital (1973), 55 Ill.2d 411 , 303 N.E.2d 392 , relied on by plaintiff, the court held that a verdict may not be directed merely because plaintiff did not establish which possible factor was the actual cause of the injury. In that case, the evidence disclosed that plaintiff’s injury could have been caused by any one of four factors, one of which was the negligent act of defendant. The court held that the proof was sufficient to establish a causal relationship between defendant’s act and the injury. The holding in Ohilgschlager is not relevant to the present case. In Ohligschlager the testimony of expert witnesses established that plaintiffs injury could have been caused by defendant in the manner alleged. The only issue was whether plaintiff had to negate all other possible causes, and the court held that plaintiff was not required to specifically prove which of the possibilities caused the injury. Here, the issue is whether the evidence supports a reasonable inference that defendant’s train struck plaintiff. Since no testimony was adduced to show that such contact was physically possible, the evidence does not support the inference. Hence, the causal relationship between the train and plaintiffs injury must be deemed conjecture rather than fact, and the res ipsa presumption of negligence cannot properly be invoked.

Having further reviewed the briefs and having considered the petition for rehearing, the answer and the reply and the cases cited, we have decided to adhere to the opinion affirming the judgment.

McGLOON, P. J., and MEJDA, J., concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.