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Velarde v. Illinois Central R.R. Co.11/8/2004
d upon Lilia to testify, giving up opportunities to discredit the staged evidence, if in fact, it was staged. Defendants now protest that calling Lilia herself would have made defendants "look cruel and heartless," actually lending credibility to a video in which Lilia appears to this court to be confused and easily upset. In addition, the silenced video was narrated by trial witnesses whose testimony was subject to additional objection, cross-examination, and curative instruction, if warranted, and defendants are not arguing that the trial judge improperly rejected defendants' attempts to limit the impact of the video through these means. We conclude it is most improbable that the jury was unduly influenced by a film which shows Lilia engaging in commonplace activities in a manner that conformed with trial testimony about her injuries and disabilities. It was not an abuse of discretion to allow the jury to see the video.
In summary, we are not persuaded by any of defendants' arguments regarding the Apulellos' use of the day-in-the-life video at trial.
Defendants' fourth main contention on appeal concerns the jury's allocation of negligence, 60%, 35%, and 5% to CNIC, CC&P; and Lilia, respectively. Defendants argue none of the responsibility should have been assigned to CC&P; since it operated the train with "due care," and that at least half of the responsibility should have been attributed to Lilia. In a negligence action, the plaintiff must establish that the defendant owed a duty of care, that the defendant breached that duty, and that the plaintiff incurred injuries proximately caused by the breach. Espinoza v. Elgin, Joliet & Eastern Ry Co., 165 Ill. 2d 107, 114, 649 N.E.2d 1323, 1326 (1995). The existence of a duty is a question of law for the court to decide, while the issues of breach and proximate cause are factual matters for the jury to decide, provided there is a genuine issue of material fact regarding those issues. Espinoza, 165 Ill. 2d at 114, 649 N.E.2d at 1326. Defendants assert that if fault is properly reallocated, Lilia will be statutorily barred from recovering damages from either defendant because her own contributory fault was more than 50% of the proximate cause of her injuries (See 735 ILCS 5/2-1116 (West 1994)), or at least CC&P;will be apportioned less than 25% of the liability and therefore rendered only severally liable for Lilia's non-medical damages (See 735 ILCS 5/2-1117 (West 1994)). The Apulellos and the Velardes respond that the evidence supported the jury's verdict and allocation of fault.
The defendants unsuccessfully presented their allocation of negligence arguments to the trial judge in a single motion seeking judgment notwithstanding the verdict for CC&P;or a new trial for defendants. CC&P;s motion for judgment notwithstanding the verdict (judgment n.o.v.) should have been granted if all the evidence, viewed mostly favorably to Lilia, so overwhelmingly favored CC&P;that no contrary verdict based on that evidence could ever stand. Maple v. Gustafson, 151 Ill. 2d 445, 453, 603 N.E.2d 508, 512 (1992). "This is clearly a very difficult standard to meet, limiting the power of the circuit court to reverse a jury verdict to extreme situations only." People ex rel. Department of Transportation v. Smith, 258 Ill. App. 3d 710, 714, 631 N.E.2d 266, 269 (1994) (Smith). "Unquestionably, it is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to decide what weight should be given to the witnesses' testimony." Maple, 151 Ill. 2d at 452, 603 N.E.2d at 511-12. "A trial court cannot reweigh the evidence and set aside a verdict merely because the jury could have drawn differ
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