{ "id": 5556501, "name": "DAVID OLTERSDORF, Plaintiff-Appellee, v. CHESAPEAKE & OHIO RAILROAD COMPANY, Defendant-Appellant", "name_abbreviation": "Oltersdorf v. Chesapeake & Ohio Railroad", "decision_date": "1980-03-24", "docket_number": "No. 78-1828", "first_page": "457", "last_page": "466", "citations": [ { "type": "official", "cite": "83 Ill. App. 3d 457" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "75 Ill. 2d 594", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "384 N.E.2d 1360", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "67 Ill. App. 3d 773", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3315598 ], "year": 1979, "pin_cites": [ { "page": "786" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/67/0773-01" ] }, { "cite": "61 N.E. 622", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "192 Ill. 9", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5578756 ], "pin_cites": [ { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/ill/192/0009-01" ] }, { "cite": "42 Ill. 2d 585", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1901, "opinion_index": 0 }, { "cite": "252 N.E.2d 366", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "114 Ill. App. 2d 124", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1588944 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "137" }, { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/114/0124-01" ] }, { "cite": "81 N.E. 9", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1969, "opinion_index": 0 }, { "cite": "227 Ill. 9", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5625584 ], "year": 1969, "pin_cites": [ { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/ill/227/0009-01" ] }, { "cite": "45 U.S.C. \u00a753", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1976, "opinion_index": 0 }, { "cite": "98 S. Ct. 1635", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "56 L. Ed. 2d 76", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "435 U.S. 982", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 2338, 2629, 2374, 2541, 2576, 2962, 2900 ], "opinion_index": 0, "case_paths": [ "/us/435/0982-01", "/us/435/0982-03", "/us/435/0982-06", "/us/435/0982-04", "/us/435/0982-07", "/us/435/0982-02", "/us/435/0982-05" ] }, { "cite": "98 S. Ct. 1483", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1978, "opinion_index": 0 }, { "cite": "55 L. Ed. 2d 514", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1978, "opinion_index": 0 }, { "cite": "435 U.S. 922", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 2848, 2852, 2952, 2762, 2380, 2732, 2446, 2675, 3062 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/us/435/0922-02", "/us/435/0922-04", "/us/435/0922-07", "/us/435/0922-06", "/us/435/0922-03", "/us/435/0922-08", "/us/435/0922-05", "/us/435/0922-09", "/us/435/0922-01" ] }, { "cite": "1 Kan. App. 2d 581", "category": "reporters:state", "reporter": "Kan. App. 2d", "case_ids": [ 411944 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/kan-app-2d/1/0581-01" ] }, { "cite": "71 Ill. 2d 618", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "378 N.E.2d 1232", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 653", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5619742 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "668-69" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0653-01" ] }, { "cite": "48 U.S.L.W. 4132", "category": "reporters:specialty", "reporter": "U.S.L.W.", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 920, "char_count": 22505, "ocr_confidence": 0.862, "pagerank": { "raw": 9.300969010012038e-08, "percentile": 0.512499956561174 }, "sha256": "3cb4e60d5535e4640d94c7cf94a84852a2f22ce965411ffb096b5ad46223a5ee", "simhash": "1:f5b779d26e419c5c", "word_count": 3766 }, "last_updated": "2023-07-14T21:00:47.613815+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DAVID OLTERSDORF, Plaintiff-Appellee, v. CHESAPEAKE & OHIO RAILROAD COMPANY, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE GOLDBERG\ndelivered the opinion of the court:\nDavid Oltersdorf (plaintiff) brought this action under the Federal Employers\u2019 Liability Act, for injuries in the course of duty, against Chesapeake & Ohio Railroad Company (defendant). A jury awarded plaintiff $1 million. Defendant appeals.\nIn this court, defendant contends the trial court erred in refusing to give defendant\u2019s requested special interrogatories relating to the plaintiff\u2019s contributory negligence; in refusing to allow evidence of the impact of taxation on plaintiff\u2019s projected future lost earnings; in refusing to instruct the jury its award of damages was not subject to taxation; and, finally, the verdict is excessive.\nOn September 16,1974, plaintiff was working as a member of a four-man crew employed by the defendant. Their assignment was to switch freight cars in and out of industrial plants at the \u201cKelsey-Hayes\u201d switching area near Romulus, Michigan.\nKelsey-Hayes is a six-track switching area. The two main tracks there are called the northbound main and the southbound main. At the south end of Kelsey-Hayes, the four other tracks diverge to the west from the main tracks and run adjacent to the main tracks through the switching area. Moving east to west, the third track is known as the \u201cnew lead.\u201d It is used only for switching cars. The \u201cnew lead\u201d ends at the north end of Kelsey-Hayes where it merges into the main tracks. The fourth and fifth tracks are called the \u201cKelsey lead\u201d and the \u201cenviron lead,\u201d respectively. These tracks service the Kelsey-Hayes and Eaton Chemical industrial plants located northwest of the switching area. The sixth, westernmost track, is called the \u201cBarrett lead.\u201d It services the Buffalo Tank industrial plant, also located northwest of the switching area.\nAt 10 p.m. on September 16, 1974, the four-man crew, including plaintiff, reported to work at defendant\u2019s railroad yard in Wayne, Michigan. Plaintiff was a brakeman, or \u201cfieldman.\u201d Paul Laisure was the engineer. Lewis Burghardt was conductor and Alfred Long was the headman.\nBurghardt was in charge of the switching operations and of all the movements of the train and crew. Plaintiff described the conductor as the \u201cforeman\u201d of the crew. Laisure operated the engine. Long, the headman, was responsible for relaying signals between the engineer and the rest of the crew and for hooking the engine on and off various cars during switching operations. As fieldman, plaintiffs duties were to ride in the caboose with the conductor. When the crew was conducting switching operations, plaintiff would be stationed on the ground at the rear of the train. He would assist in the switching of cars and operating the hand brakes on cars which were unhooked or \u201ccut\u201d from the train.\nPlaintiff testified the crew left the Wayne, Michigan railroad yard with an engine, 17 boxcars and a caboose. Plaintiff was riding in the caboose with Burghardt. The train stopped at the Romulus, Michigan, depot. Plaintiff picked up switching orders assembled by one of defendant\u2019s agents from directions given to him by the three plants serviced from Kelsey-Hayes. Plaintiff gave Burghardt the orders, gave a copy of them to Long and kept a copy for himself. The train left Romulus on the southbound main track heading for Kelsey-Hayes. Plaintiffs best recollection was he rode in the caboose with Burghardt and Long rode in the engine with the engineer. Burghardt carried a \u201cwalkie-talkie\u201d and there was a radio in the engine. There was no communication between the caboose and the engine during the 5-minute ride from Romulus to Kelsey-Hayes.\nPlaintiff stated he discussed the switching work to be done with Burghardt on the way to Kelsey-Hayes. Burghardt told plaintiff he planned to release or \u201ccut\u201d the engine from the remainder of the train and leave the 17 boxcars and the caboose on the southbound main track. Burghardt would then take the engine to the new lead track, the next track to the west. There, he would connect nine cars to the engine. The nine cars were already standing on the new lead as part of a longer train. From front to rear these cars were four boxcars, two tank cars, two more boxcars and a flatcar. Burghardt told plaintiff they would then pull out the nine cars, put the flatcar on the Barrett lead, the farthest track to the west, put the next two boxcars back on the new lead, and then put two tank cars on the Barrett lead. The four boxcars left on the train would be connected to the remaining cars on the new lead and then \u201cdoubled up\u201d with the boxcars remaining on the southbound main track which the crew had brought from Wayne. All these cars would then be taken to the Kelsey lead, west of the new lead, and pushed into the Kelsey-Hayes plant.\nWhen the train arrived at Kelsey-Hayes, the engine was detached from the 17 boxcars and caboose. They were left standing on the southbound main as Burghardt had said. Burghardt alighted from the caboose and uncoupled nine cars on the new lead from the other cars there. The engine was then brought to the new lead and attached to these nine cars which Burghardt had just \u201ccut.\u201d Plaintiff testified that at this point, Long, the headman, asked Burghardt \u201cwhat he had in mind\u201d. Burghardt repeated to Long, as Burghardt had previously told plaintiff in the caboose, about these nine cars. The crew was to take the flatcar to the Barrett lead, the 2 boxcars back to the new lead, the 2 tank cars to the Barrett lead, and then they would double up the remaining cars with the 17 boxcars which remained on the southbound main track, all to be taken to the Kelsey lead.\nPlaintiff\u2019s testimony as to what happened up to this point was contradicted by Burghardt and Long. These witnesses testified that on the trip from Romulus to Kelsey-Hayes, plaintiff was not in the caboose with Burghardt but was riding in the engine with Long, the headman, and the engineer. Plaintiff\u2019s counsel virtually conceded this fact in his closing argument. Both witnesses also testified that while plaintiff received the switching list at Romulus, he did not give it to Burghardt until the train arrived at .Kelsey-Hayes. Burghardt testified he did not communicate by radio with anyone in the engine during the trip from Romulus. However, Long stated plaintiff did converse with Burghardt on the radio. Plaintiff told Burghardt he had received the switching list \u201cand went over a few things on the list.\u201d Long could not recall any more of the conversation.\nBurghardt testified that after he reviewed the switching list, he told plaintiff and Long they would take the first 9 cars off of the train on the new lead, put the flatcar into the Barrett lead, put the 2 boxcars and 2 tank cars back into the new lead, and then take the remaining 4 boxcars and connect them to the 17 cars they had brought from Wayne. Burghardt specifically denied he ever told plaintiff he was going to put the two tank cars on the Barrett lead. Burghardt stated his intention was to put another flatcar (which he claimed was on the train they brought from Wayne) on the Barrett lead. He testified putting the tank cars on the Barrett lead would be \u201ctotally contrary\u201d to his method of switching. This would require him to handle the tank cars at least one more time to get them out from between the flatcars and on tp the Kelsey lead where they would be pushed into the Eaton Chemical plant.\nLong testified he could only remember Burghardt telling plaintiff and himself that the flatcar at the rear of the nine cars on the new lead had to go to the Barrett lead.\nEvents which transpired after the conversation between plaintiff, Burghardt and Long at Kelsey-Hayes are basically undisputed. After the engine was coupled to the cut of nine cars on the new lead, it pulled these cars 1000 yards south on the new lead past the switch regulating entry into each track. The switch was then thrown so that the engine could \u201ckick\u201d the flatcar on the north, rear end of the train into the Barret lead, to the extreme west, as planned. The \u201ckick\u201d is a maneuver by which the engine begins to push the cars and the coupler pin is pulled to disconnect the cars from the engine. The engine is then stopped and the released cars continue to roll ahead on their own momentum.\nThe flatcar was kicked. Plaintiff boarded it and set the hand brake as the car rolled into the Barrett lead. Plaintiff then lined up the coupling mechanism on the flatcar so the next car to enter the track would couple with the flatcar.\nAfter the flatcar was released, the engine went south past the switch once more. Burghardt reset the switch for the train to enter the new lead. As Burghardt was standing by the switch, he told Long, \u201cI want two boxcars and two tank cars.\u201d Long stood at the rear of the train. He testified he interpreted Burghardt\u2019s directions as meaning he wanted two separate cuts of two cars each. He did not know where Burghardt intended to put the tank cars. Long uncoupled the last two boxcars from the two tank cars and the two boxcars were kicked into the new lead. When Burghardt saw only the two boxcars entering the new lead, he told Long, \u201cLet the tank cars go, too.\u201d Long accordingly uncoupled the two tank cars and they were also kicked into the new lead. According to Burghardt, the time between these two kicks was 5 to 15 seconds. Burghardt did not know where plaintiff was at this time.\nMeanwhile, plaintiff had left the flatcar standing on the Barrett lead and was walking toward the new lead track. As he walked, he could see the silhouettes of Long and Burghardt, and he also saw the two boxcars coming into the new lead. When plaintiff arrived at the new lead, he pulled the coupling pin on the southernmost stationary car which the boxcars were about to connect with. He did this to insure a clean connection. The boxcars coupled with the standing cars and plaintiff stepped across the rail to connect the air hoses between the coupled cars. Plaintiff stepped across the rail to connect the air hoses between the coupled cars. Plaintiff testified he could hear the engine \u201crevving\u201d to kick the two tank cars, but he thought they were being kicked into the Barrett lead. As plaintiff started to step out from between the boxcars, the two oncoming tank cars made contact and coupled onto the boxcars. The resulting jolt caused plaintiff to fall between the boxcars. Plaintiff\u2019s right leg was partially severed below the knee by the wheel of one of the cars.\nNeither Burghardt nor Long realized what happened until plaintiff asked for them to come over and help him. A tourniquet was applied to plaintiff*s leg. At the hospital his leg was amputated just below the knee.\nPlaintiff, Burghardt and Long further testified as to the customs and practices involved in switching operations. Burghardt testified it was not the usual custom and practice to lace or connect air hoses between cars while cars were in the process of being switched. Usually, the hoses on a cut of cars would be connected after the engine was attached to the cut and the cars were stretched out. However, plaintiff stated it was never his custom to wait until the engine was attached to the train to connect the air hoses. Long corroborated plaintiff\u2019s testimony. Long stated plaintiff performed a usual and customary act in lacing the air hoses as he did. Long noted that since those cars were going to be switched out, they were required to have air supply.\nPlaintiff testified the usual custom and practice when a conductor wanted to switch four cars onto one track would be for him to ask for four cars and not to request two and two as Burghardt had done on the night of the accident. Plaintiff and Long had never heard Burghardt ask for a cut of four cars in that manner before the night of the accident. Burghardt stated he intended to put the four cars on the new lead, but he admitted that his manner of asking may have been confusing to plaintiff and Long.\nSafety rules were introduced into evidence by both parties. Plaintiff introduced a rule from defendant\u2019s own book of safety rules. The rule states:\n\u201cPlanning work. To expedite switching the conductor or yard foreman will see that all members of the crew, including the engineer, when practical, are fully informed of the switching movement to be made as many moves in advance as possible thereby giving them an opportunity to be prepared for such movement.\nAfter other members of the crew have been informed of the sequence of switching movements to be made, changes should not be made unless those concerned have been fully informed of the changed conditions.\u201d\nWhen asked if Burghardt had complied with this rule, Long answered, \u201cWell, no.\u201d\nDefendant introduced a safety rule applicable to switching operations from the \u201cChessie System Operating Rules\u201d which states:\n\u201cThey [switchmen] must expect movement of trains, engines or cars at any time on any track in either direction.\u201d\nPredicated upon these facts, it is our opinion the verdict as regards the negligence of defendant is strongly supported by the evidence. This portion of the verdict is approved.\nAn actuarial expert called by defendant testified as to plaintiffs projected lost future earnings. The actuary calculated that, assuming a 5-percent annual increase in wages, an 18.5-year future work life and a 7-percent discount rate, the then present value of plaintiffs lost future earnings, after deducting the amount he would make in his present job as a security guard, was $327,369. This amount did not take into consideration any deductions for income taxes. Prior to this testimony, the trial court had granted plaintiff\u2019s motion in limine to exclude any evidence on the impact of taxation on lost future earnings. Defendant offered to prove that if Federal income taxes, State income taxes and railroad retirement taxes were considered in the calculations and the discount rate was lowered to 6 percent, the net lost future earnings would be $166,051. As already noted, the jury returned a verdict of $1 million.\nThe trial court also refused a defendant\u2019s instruction which stated:\n\u201cIn reaching your verdict, you will not increase the amount of your verdict by reason of federal, state or local income taxes, since the amount awarded to plaintiff is not taxable income to plaintiff within the meaning of these tax laws.\u201d\nSince oral argument before this court on January 21, 1980, we have had the benefit of a decision by the Supreme Court of the United States in Norfolk & Western Ry. Co. v. Liepelt (Docket No. 78-1323, filed February 19, 1980), 48 U.S.L.W. 4132. Liepelt originated in the circuit court of Cook County. This court affirmed on appeal. (Liepelt v. Norfolk and Western Ry. Co. (1978), 62 Ill. App. 3d 653; 378 N.E.2d 1232, appeal denied (1978), 71 Ill. 2d 618.) Liepelt involved a wrongful death action under the Federal Employers\u2019 Liability Act (FELA). At trial, actuarial evidence was heard as to the lost future earnings of the decedent, which were calculated to be $302,000. The trial court there also refused to allow evidence of the impact of taxation on the lost earnings. In an offer of proof by defendant, an actuary calculated that the net amount of lost earnings, after consideration of the impact of Federal income taxes and making adjustments to the annual increase in wages and the discount rate, was $138,327. The trial court also refused to instruct the jury that \u201cyour award will not be subject to any income taxes, and you should not consider such taxes in fixing the amount of your award.\u201d Norfolk ir Western Ry. Co. v. Liepelt (Docket No. 78-1323, filed February 19,1980), 48 U.S.L.W. 4132.\nAt the time this court reviewed Liepelt, the United States Supreme Court had not decided these issues. Therefore, we followed the decisions of the Illinois Supreme Court thereon and affirmed the trial court. (See Liepelt, 62 Ill. App. 3d 653,668-69.) However, the United States Supreme Court reversed our decision and held that \u201cthe wage earner\u2019s income tax is a relevant factor in calculating the monetary loss suffered \u00b0 \u00b0 and \u201cit was error to refuse the requested instruction in this case.\u201d The supreme court remanded the cause for further proceedings.\nPlaintiff\u2019s counsel has attempted to distinguish Liepelt from the instant case. He contends Liepelt deals only with wrongful death actions under the FELA in which damages are limited to decedent\u2019s contributions to the surviving dependents. We find no merit to this contention and conclude the Liepelt decision controls this case.\nThere is no language in the opinion of the United States Supreme Court to. indicate it is limited to wrongful death cases under the FELA. Furthermore, the court had previously granted certiorari on precisely these same issues on instructions in a personal injury action under the FELA where, as in the instant case, the plaintiff suffered the loss of a leg. Chicago, Rock Island & Pacific R.R. Co. v. Rediker (1977), 1 Kan. App. 2d 581,571 P.2d 70, cert, granted (1978), 435 U.S. 922,55 L. Ed. 2d 514,98 S. Ct. 1483, cert, dismissed (1978), 435 U.S. 982, 56 L. Ed. 2d 76,98 S. Ct. 1635 (pursuant to Supreme Court Rule 60).\nTherefore, we must apply the teaching of the United States Supreme Court in Liepelt to the case before us. We hold the trial court erred in refusing to allow evidence of the impact of taxation on plaintiff\u2019s lost future earnings and in refusing to instruct the jury its award of damages was not subject to taxation.\nUnder the view we take of the instant case, it is also necessary for us to pass upon the propriety of defendant\u2019s special interrogatories relating to plaintiff\u2019s contributory negligence which were refused by the trial court.\nUnder the FELA, \u201cthe fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee * * 45 U.S.C. \u00a753 (1976).\nIn our opinion, the contradictory nature of the testimony in the instant case raised an issue of fact as to whether plaintiff exercised ordinary care for his own safety before and at the time of the occurrence. We conclude the issue of plaintiff\u2019s contributory negligence was properly left for the jury to resolve.\nDefendant tendered two special interrogatories pertaining to the contributory negligence issue. They were:\n\u201cSPECIAL INTERROGATORY NO. 1.\nDo you find that the plaintiff was guilty of contributory negligence which was a proximate cause of his injury?\nYes_\nNo___\nSPECIAL INTERROGATORY NO. 2.\n\u201cIf you have answered the preceding question \u2018Yes\u2019, what portion or percentage of the plaintiff\u2019s negligence contributed to his injury?\nThe trial court rejected these special interrogatories on the theory they did not control the verdict. Defendant contends this was reversible error. It has long been the rule that \u201c[t]he court is not required to submit a special interrogatory unless it relates to ultimate facts of such a character that it would control a general verdict.\u201d (Springfield Coal Mining Co. v. Gedutis (1907), 227 Ill. 9, 13, 81 N.E. 9; Stephenson v. Air Products & Chemicals, Inc. (1969), 114 Ill. App. 2d 124,137, 252 N.E.2d 366, appeal denied (1970), 42 Ill. 2d 585.) Therefore, interrogatories of this type should necessarily be framed \u201cfor the purpose of controlling any general verdict that may be returned for the plaintiff.\u201d Chicago ir Alton R.R. Co. v. Harrington (1901), 192 Ill. 9, 34, 61 N.E. 622.\nDefendant argues the above special interrogatories would have been controlling on the ultimate issue of damages. We disagree. In the instant case, the jury was properly instructed as to how damages should be computed in event of contributory negligence (Illinois Pattern Jury Instructions, Civil No. 160.13 (2d ed. 1971) (hereinafter cited as IPI Civil)):\n\u201cIf you find that plaintiff\u2019s injury was proximately caused by a combination of plaintiff s contributory negligence and negligence on the part of the defendant, then in assessing the damages you should proceed in the following manner: First, determine the amount of the plaintiff\u2019s damages without reference to the question of contributory negligence. Second, decide what proportion or percentage of the total combined negligence of both parties causing the injury consisted of the plaintiff\u2019s negligence. Finally, reduce by this proportion or percentage the amount of damages you would have awarded had the plaintiff\u2019s negligence not contributed to the injury.\u201d\nIf these two special interrogatories had been given there would be no possibility of ascertaining whether the above instruction was followed. The only fact that could be deduced from the answers to these interrogatories is the degree or percentage of plaintiff\u2019s contributory negligence, if any. We could not be aware of the amount of damages without reference to the question of contributory negligence. Without knowledge of the jury\u2019s thinking on this point, the special interrogatories could not control \u201cany general verdict that may have been returned for the plaintiff.\u201d\nIn addition, the defendant\u2019s first special interrogatory is improper in form. It fails to limit the inquiry of whether plaintiff was guilty of contributory negligence to \u201c\u2018before and at the time of the occurrence.\u2019\u201d (Stephenson, 114 Ill. App. 2d 124,137, quoting IPI Civil No. 10.03.) Thus, the trial court properly refused to submit these interrogatories to the jury. See Skinner v. Baker (1978), 67 Ill. App. 3d 773, 786, 384 N.E.2d 1360, appeal denied (1979), 75 Ill. 2d 594.\nFor these reasons, the judgment appealed from is reversed and the cause is remanded for a new trial on the issue of damages only. In fixing the amount of plaintiff\u2019s damages, the jury will be required to determine if plaintiff was guilty of contributory negligence; and, if so, what proportion or percentage of the total combined negligence of both parties consisted of the plaintiff\u2019s contributory negligence.\nReversed and remanded with directions.\nMcGLOON and O\u2019CONNOR, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE GOLDBERG" } ], "attorneys": [ "Lord, Bissell & Brook, of Chicago (Alvin E. Domash, Hugh C. Griffin, and Patricia Foy Cross, of counsel), for appellant.", "Robert E. Harrington and John J. Naughton, both of Chicago (Harrington & Harrington, Ltd., and Henslee, Monek & Henslee, of counsel), for appellee." ], "corrections": "", "head_matter": "DAVID OLTERSDORF, Plaintiff-Appellee, v. CHESAPEAKE & OHIO RAILROAD COMPANY, Defendant-Appellant.\nFirst District (1st Division)\nNo. 78-1828\nOpinion filed March 24, 1980.\nRehearing denied April 28, 1980.\nLord, Bissell & Brook, of Chicago (Alvin E. Domash, Hugh C. Griffin, and Patricia Foy Cross, of counsel), for appellant.\nRobert E. Harrington and John J. Naughton, both of Chicago (Harrington & Harrington, Ltd., and Henslee, Monek & Henslee, of counsel), for appellee." }, "file_name": "0457-01", "first_page_order": 479, "last_page_order": 488 }