Edwardsville attorney Eric Carlson has filed a post trial motion for judgment notwithstanding the verdict or new trial for client Guy Webb who was recently found to be 100 percent at fault for injuries sustained in a private railroad crossing accident in Iron County, Mo. in 2007.

It was the second trial for Webb.

The first one ended more favorably for him in his case against Union Pacific Railroad, as jurors in 2010 awarded him $2.5 million. That amount was reduced by half, as jurors then found Webb to be 50 percent comparatively at fault as driver in the accident.

But, Union Pacific appealed the judgment, and in 2012 the Fifth District Appellate Court reversed Matoeisan. The appellate court held that Matoesian erred by allowing the plaintiff to rely on certain industry safety standards, but prohibited Union Pacific from showing that those standards apply to public crossings, not private crossings. A new trial was ordered and held July 14-18.

Carlson lays out a number of arguments for invalidating the verdict or getting yet another trial in his motion filed Aug. 15. As of Sept. 16, Matoesian had not yet ruled.

Among other things, Carlson argues that Matoesian failed to hold a proper jury instruction conference, depriving Webb of a fair trial.

He also claims that Matoesian interjected himself in the proceedings which "likely caused sympathy for defendant."

His last argument for a new trial focuses on recent news reports of an investigation into the Madison County jury commission. On July 30, State’s Attorney Tom Gibbons filed a motion for appointment of a special prosecutor based upon police reports of criminal misconduct.

"Recent allegations demonstrate that the jurors summoned may have been improperly tampered with so as to effect plaintiff's right to a fair and impartial jury," Carlson wrote.

Guy Webb had been an original defendant in a 2008 lawsuit filed by plaintiff Misty Webb, whose father James Webb, Jr., as passenger in Guy Webb's vehicle, perished in the accident. In 2009, Guy Webb joined as counter plaintiff against Union Pacific.

In his argument for judgment notwithstanding the verdict, Carlson says the verdict "cannot stand" because "overwhelming evidence" of Union Pacific's breach of legal duty was undermined or ignored by the jury in that 100 percent allocation of fault was placed on Webb.

"...It is clear Union Pacific's continued argument and evidence that no state or federal statute or regulation or rule required it to blow its whistle or cut vegetation at private crossings allowed the jury to erroneously conclude that Union Pacific's failure to cut its vegetation and refusal to blow its whistle was legally excused," Carlson wrote.

"The existence of duty is a question of law to be decided by the Court, and not by the jury. This Court determined that Union Pacific had a duty at this crossing and the jury nullified this determination."

Carlson also argues for a new trial saying the jury verdict was against the manifest weight of the evidence related to the conditions near the site of the accident. He wrote that consistent with the evidence, the court instructed jurors that they "must" assess a percentage of fault to Union Pacific if they believed either the railroad failed to properly maintain its crossing, failed to maintain a proper sight distance at its crossing or failed to sound an adequate warning before reaching the crossing.

He further argues that Matoesian erred by allowing Union Pacific to present evidence of its statutory obligations at public crossings but did not require the railroad to do the same at private crossings. Carlson also states that Matoesian improperly allowed certain testimony from defense experts.

Regarding his argument on improper jury instructions, Carlson wrote that Matoesian refused to instruct both parties as to comparative fault or contributory negligence.

"...[P]laintiff's counsel as well as defendant's counsel were concerned that the Court's refusal to instruct on comparative fault would be reversible error," he wrote.

"When this concern was brought to the trial Court's attention, the trial Court excused itself from the instruction conference and told the parties to simply work the matter out on their own.

"The parties were left with the difficult choice after a week of trial of having improper instructions given that both knew were likely reversible, or attempting to cobble together a set without the benefit of getting to lodge their objections and rulings by the trial Court. The parties chose the latter."

In addition to evading blame for Guy Webb's injuries, jurors also awarded costs to Union Pacific Railroad.

Union Pacific is represented by Thomas E. Jones, Harlan A. Harla and Misty Edwards of Belleville.

Madison County case number 08-L-1139.

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