dissenting:
I respectfully dissent.
The majority in this opinion affirms the trial court’s refusal of laintiff’s tendered instruction on a safe place to work and in the ourse of the opinion reviews the evidence admitted on that question, differ with my colleagues, determining that on the record before us here is sufficient evidence to submit a safe place to work instruction nd that the trial court’s failure to give that tendered instruction was eversible error.
It is basic law that a jury should be instructed on all theories of a given case that have evidence in the record to support that particular theory. Ervin v. Sears, Roebuck & Co. (1976), 65 Ill. 2d 140, 357 N.E.2d 500, stands for the proposition that a plaintiff has the right to have the jury “clearly and fairly instructed” on each theory of his case that is supported by the evidence. 65 Ill. 2d at 145, 357 N.E.2d at 503.
The majority opinion recites sufficient evidence to support plaintiff’s theory of failure to provide a safe place to work in its succinct recitation of the events on the day in question. The proper standard to be applied by the trial court is whether there is evidence in the record that arguably supports the theory in question. Babcock v. Chesapeake & Ohio Ry. Co. (1979), 83 Ill. App. 3d 919, 404 N.E.2d 265.
As related in the majority opinion:
“At trial, plaintiff testified that on the day he was injured, one of the pins on a railroad car did not release on the first pull. Since the pin did not release on the first pull as it was supposed to, plaintiff jerked on the pin three or four times, but was still unsuccessful in disengaging the knuckle. Plaintiff stated that on the third or fourth jerk, he ‘gave it all [he] had,’ and felt something snap in his back.” (193 Ill. App. 3d at 359.)
This scenario, standing alone, is arguable support for the theory of failure to provide a safe place to work. A jury contemplating this evidence could reasonably conclude, if properly instructed, that a railroad’s duty of a safe place to work meant in this particular case that the railroad had the obligation to supply pins that would release on the first pull. As the majority opinion later notes, it was the policy of the railroad that its employees pull on these pinlifters only once. The trier of fact could reasonably conclude that the workplace, inclusive of its machinery, should properly meet the standards that the employer itself has set and that failure to do so was negligence.
In order to consider or reach these conclusions, however, the jury must be properly instructed and meet the Ervin test as stated above. The majority opinion notes that the instructions as a whole should not mislead the jury, citing Lundberg v. Church Farm, Inc. (1986), 151 Ill. App. 3d 452, 502 N.E.2d 806, but in this particular trial, the instructions as a whole did, in fact, mislead.
Initially, the jury was instructed as part of Illinois Pattern Jury Instructions (IPI), Civil 2d No. 1.01, that:
“The law applicable to this case is contained in these instructions and it is your duty to follow them. You must consider these instructions as a whole, not picking out one instruction and disregarding others.” (Illinois Pattern Jury Instructions, Civil, No. 1.01[2] (2d ed. 1971).)
They were subsequently instructed in IPI Civil 2d No. 160.08 that:
“It was the duty of the railroad to use ordinary care to provide the plaintiff with a reasonably safe place in which to do his work.” (Illinois Pattern Jury Instructions, Civil, No. 160.08 (2d ed. 1971).)
Plaintiff tendered, and the court refused, IPI Civil 2d No. A20.01 (Modified) (Supp. 1986), noted as “Plaintiff’s Instruction No. 16,” which noted in part:
“The plaintiff claims that he was injured and sustained damage and that the defendant St. Louis Southwestern Railway Company was negligent in one or more of the following respects:
In that St. Louis Southwestern Railway Company: failed to provide plaintiff with a reasonably safe place in which to work; provided plaintiff with a defective pin lifter with which to work.
Plaintiff further claims that one or more of the foregoing was a proximate cause of his injuries.” (See Illinois Pattern Jury Instructions, Civil, No. A20.01 (2d ed. Supp. 1986).)
The trial court, in fact, instructed the jury with plaintiff’s instruction No. 16A, IPI Civil 2d No. A20.01 (Modified) (Supp. 1986), which read as follows:
“The plaintiff claims in Count I of his Complaint that he was injured and sustained damage and that the defendant St. Louis Southwestern Railway Company was negligent in one or more of the following respects:
provided plaintiff with a defective pin lifter with which to work.
The plaintiff further claims that one or more of the foregoing was a proximate cause of his injuries.” See Illinois Pattern Jury Instructions, Civil, No. A20.01[l] (2d ed. Supp. 1986).
Defendant argues to this court that since the jury was told of the uty to provide a safe place within which to work, the jury was not misled. This is clearly not so when one considers the admonition of the court to consider the instructions as a whole and the standard cited above in Lundberg that the instructions taken as a whole should .ot mislead the jury. This jury was told to heed all the instructions as whole and not individually, was told that a duty existed and then vas not told that plaintiff was alleging a breach of that particular uty. The only fair and reasonable way to read these instructions as a hole is that defendant complied with the duty to provide a safe place to work and that the jury, being guided by these instructions as a whole, should not consider a possible breach of that duty. Since the evidence submitted in this case, as recited in the majority opinion, shows that there was arguable support for the theory of breach of the duty to provide a safe place to work, failure of the trial court to instruct the jury on this issue was error, and justifies reversal and remand.
For the foregoing reasons, I would reverse and remand this cause for a new trial.