dissenting:
In my opinion, it was reversible error to permit the plaintiff’s expert to testify, particularly as to his opinion that the crossing was “very inadequately protected.” Admission of such testimony, essentially an expert opinion that the defendant was negligent, is virtually unprecedented in Illinois, and in my opinion was completely unjustified here.
Defendant cites the Miller, Plank and Abramson cases for the proposition that expert testimony is inadmissible upon matters within the average juror’s knowledge and experience. The majority suggests that these cases are irrelevant here, since they involved automobile accident reconstruction testimony, which “overlapped” eyewitness testimony. But this distinction is not meaningful; as the majority recognizes, the rationale of the opinions is that expert testimony is inadmissible where not necessary. Defendant contends that the protection of the crossing was a subject within the knowledge, experience and understanding of the average juror, and that therefore there was no necessity for expert testimony on the issue. The rationale of the cited cases is applicable. Our decisions in Baran, Brown and Darling do not establish exceptions to the rule of necessity. The issue was not even raised before us in these cases. Moreover, the realization that the amputation of a leg is a subject beyond the knowledge of an average juror surely does not require a similar conclusion as to the protection of a railroad crossing. The fact that the Illinois Commerce Commission receives expert testimony on the subject is irrelevant— the Commission may welcome any testimony which is even remotely helpful, whereas necessity is the prerequisite for admission of expert testimony before a jury. It is a baffling “holding” to entitle a jury to the “same aid and enlightenment an expert may provide” to the Commission. Such a holding presents no meaningful standard for determining admissibility, but instead distorts the established law that the admissibility of expert testimony is governed ultimately by the rule of necessity. As stated in Mahlstedt v. Ideal Lighting Co., 271 Ill. 154, 171: “Expert testimony is proper when the subject matter of the inquiry is of such a character that only persons of skill or experience in it are capable of forming a correct judgment as to any fact connected therewith.” The protection of a railroad crossing is not a proper subject for expert testimony.
Far more critical than the question of admissibility generally, is the propriety of expert testimony on the ultimate issue. Relying on language from a case which it had earlier distinguished, the majority gives this matter the most cursory consideration and abrupty overrules a well-settled rule of law in Illinois.
“It is an elementary rule that where the court or jury can make their own deductions they shall not be made by those who testify.” (Mahlstedt v. Ideal Lighting Co., 271 Ill. 154, 171.) This rule was not cast aside by the decisions cited by the majority. Each was a case where the jury was unable to make its own deduction. In the Clifford-Iacobs case, medical causation testimony was permitted on the authority of Chicago Union Traction Co. v. Roberts, 229 Ill. 481, 484, where we held that: “It is not the province of an expert to * * * decide a question of fact. * * * The opinion is permitted to be given to enable the jurors to draw the inferences from the evidence which their want of knowledge would otherwise prevent. In this case the question was whether the appellee’s condition was due to traumatism or other causes. It was a question for the jury to determine, but it was impossible for them to answer without hearing the opinions of physicians. These opinions did not invade the province of the jury.” Thus, it is only when the jury’s decision would otherwise be based only upon speculation and conjecture that expert opinion testimony on an ultimate issue has been permitted. In Miller we clearly limited our holding to automobile accident reconstruction cases, and explicitly retained the rule of necessity. Viewed in context, it is obvious that the language upon which the majority relies here in overturning the rule of necessity was never intended to have such an effect: “While there is a conflict in authority among American courts on this matter, we are of the opinion that expert testimony on reconstruction of an automobile accident should be admissible where it is necessary to rely on knowledge and application of principles of physics, engineering and other sciences beyond the ken of the average juror. Such evidence does not usurp the province of the jury, since the jury does not have to accept the witness’s opinion. Further, such evidence is essential to aid the jury in drawing the proper references from the raw physical facts.” (Miller v. The Pillsbury Co., 33 Ill.2d 514, 516-17, emphasis added.) The testimony was permitted in Miller because it was necessary, not because the jury could disregard it. Indeed, to argue that the expert opinion here was admissible because it was not binding is a contradiction — if the jury could not draw its own inferences from the evidence as to the adequacy of protection at the crossing, then on what basis could it rationally disagree with the expert opinion? If only such evidence as the jury must accept can be said to usurp the jury’s province, I cannot conceive of any situation where it would occur. I submit that the language upon which the majority here relies has little meaning, was unnecessary to the decision in Miller, and is certainly no authority for the elimination of the rule of necessity as applied to opinion testimony on an ultimate issue. The rule has always been recognized in Illinois, both before Miller (see Wawryszyn v. Illinois Central R.R. Co. (1956), 10 Ill. App. 2d 394; Hughes v. Wabash R.R. Co. (1950), 342 Ill. App. 159, and after. (See Spiezio v. Commonwealth Edison Co. (1968), 91 Ill. App. 2d 392.) In Yarber v. Chicago and Alton Ry. Co., 235 Ill. 589, cited in Mahlstedt, plaintiff was injured when a railroad car fell from the rigging used to raise it up. Our statement of the law there is equally applicable in the instant case. “It is assigned for error that the appellee was permitted to introduce in evidence the opinions of witnesses as to whether the method of raising the car was reasonably safe. Opinion evidence is admissible only upon subjects not within the knowledge of men of ordinary experience, and upon the ground that the facts are of such a nature that they can not be presented in such a manner that jurors of ordinary intelligence and experience in the affairs of life can appreciate them in their relations and comprehend them sufficiently to form accurate opinions and draw correct inferences from them on which to base intelligent judgments. The opinions of witnesses should not be received as evidence where all the facts on which such opinions are founded can be ascertained and made intelligible to the jury. (Linn v. Sigsbee, 67 Ill. 75; City of Chicago v. McGivin, 78 id. 347; Pennsylvania Co. v. Conlan, 101 id. 93; Hopkins v. Indianapolis and St. Louis Railroad Co., 78 id. 32.) The subject matter of inquiry here is not of such a character that only persons of skill and experience in it are capable of forming a correct judgment about it. There was no complicated machinery, no question of science or skill. If the expert witness did not know all the facts his opinion would be only a guess. If he did known them, they could be detailed to the jurors and they would be as competent to form an opinion as the witness. This evidence should not have been allowed to go to the jury.” (Yarber, at 593-94.) Again in Keefe v. Armour & Co., 258 Ill. 28, 33, dealing with the explosion of a boiler while being repaired, we held that “The question whether the method employed was reasonably safe was an ultimate fact in the case, to be determined by the jury as a conclusion from evidentiary facts. To permit the witness to give his opinion on the ultimate fact was to supplant the jury by a witness, and practically take from the defendant the right to a judgment of the jury as to the proper inferences to be drawn from the facts. Of course, the jury was entitled to the aid of experts in determining the existence or non-existence of facts not within the common knowledge from which a conclusion would arise whether the method was reasonably safe. It was competent to prove that the conditions stated in the hypothetical question would be liable to form gases; that such gases would be explosive and would explode by ignition or at a certain temperature, as well as any other fact which would enable the jury .to draw an inference as to the ultimate fact to be determined, but it is the rule of this court that an expert witness must not take the place of the jury and declare his belief as to the ultimate fact.” These decisions preceded Mahlstedt, and have been followed long after. (See, e.g., Gillette v. City of Chicago, 396 Ill. 619; People v. White, 365 Ill. 499.) If we are now suddenly to permit expert opinion testimony on the ultimate issue whenever it may “aid and enlighten” the jury, I see virtually no barrier whatever to admission of such testimony in every conceivable case. In my judgment, the rule should remain as it has been heretofore, with expert opinion testimony on the ultimate issue admitted reluctantly, and only where absolutely necessary. Otherwise, the jury is relegated as here to merely determining whether it will accept the expert’s conclusion, rather than performing the proper function of forming its own conclusion from the relevant facts in evidence.
I believe it was reversible error to permit the plaintiff’s expert to testify on a subject within the knowledge, experience and understanding of the jury, and particularly to give the opinion that the crossing was “very inadequately protected.” I accordingly dissent from the majority opinion, and the abrupt overruling of the long-setlted rule of necessity as applied to expert testimony.