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ENGEL v. CHICAGO & NW. TRANSPORTATION CO.
186 Ill. App.3d 522 (1989)
Appellate Court of Illinois — First District (4th Division).
Opinion filed February 16, 1989.
Next, the Park District urges us to reverse and remand this case for a new trial on the grounds that the jury was prejudiced against it. In support of this contention it primarily relies on the size of the damages award and the fact that the jury did not find Engel comparatively negligent. • 5 The Park District maintains that the jury's refusal to hold Engel responsible for any percentage of negligence is against the manifest weight of the evidence. The Park District cites Engel's good to average grades in school and his having been near or on the trains many times as indicative of his ability to appreciate the risks involved in flipping trains. For supporting authority the District cites cases from other jurisdictions that ruled on the dangers of trains as posing obvious risks, as a matter of law. Since we have already rejected the argument that the danger in this case was "obvious," under the analysis of duty, these cases do not aid us on the manifest weight of evidence issue. Moreover, we find that the jury was the proper entity to assess all of the evidence, including Engel's age, intelligence, and experience. Since in his experience many children and adults had hopped the trains without injury, the jury could have concluded he had no true appreciation of the risks involved. We will not reweigh the evidence or substitute our judgment for that of the jurors. • 6 For similar reasons we will not vacate the damages award. While $5 million is indeed a substantial sum, the Park District does
not claim that there is nothing in the record to support it. Nor does the Park District suggest what sum it believes would be reasonable compensation for Engel's medical expenses, loss of future income, pain and suffering, and disability and disfigurement. Instead, the Park District claims that the award was out of line with other comparable cases and that it was "fueled" by the jury's anger toward the Park District. • 7 Ironically, the anger that the Park District now argues deprived it of a fair trial grew out of its presentation of apparently fabricated documents and untrue testimony as to the repairs made to the fence in Hermosa Park. If the jury believed that it had been lied to, and the record supports this possibility, it is hardly surprising that the jurors may have become angry. While a defendant's possible perjury at trial does not translate into a proper basis for a jury's award of compensatory damages to a plaintiff, it does suggest that the cause of the jury's "inflamed passions" was not plaintiff's doing, but defendant's. In any event, because the punitive damages count was also submitted to the jury, they were given an outlet to "punish" the Park District.1 The compensatory award, therefore, stands on its own. See Stein v. Burns International Security Services, Inc. (1981), 102 Ill.App.3d 776, 430 N.E.2d 334. IIIAs its final argument, the Park District challenges what it characterizes as "surprise expert testimony," incomplete impeachment of one of its witnesses, and erroneous instructions. Mr. Hayes, a forensic document examiner, was retained by plaintiff's counsel after counsel began to suspect that the original Park District memos prepared by Frank Barton had been prepared all at one time, on one pad, with the same pen, even though they bore dates spanning two years. All experts had been barred pursuant to Supreme Court Rule 220 (107 Ill.2d R. 220), since none had been disclosed before trial. Nevertheless, plaintiff's attorney successfully argued that he had never received the original, suspicious documents, nor had he been allowed to examine them until trial, despite discovery
requests. Therefore, he did not know he would need a document examiner until he saw the originals at trial.
1. As the Park District points out, there is a distinction between punishment for wilful and wanton acts or omissions in relation to the tort itself and punishment for perjury during trial. The former is a proper base for imposition of punitive damages by a jury, while perjury may be separately punished by contempt or a criminal proceeding. (Amerco Field Office v. Onoforio (1974), 22 Ill.App.3d 989, 317 N.E.2d 596.) Since the punitive damages award has been vacated, however, we need not determine whether it would have been a proper award on any basis.
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