decide whether or not twelve zero for instruction was appropriate instead the appellate court reversed without visiting that issue instead decided without determining whether the trial court abused her discretion that the case should be reversed and remanded for four items of evidence we believe your honor as we stated our grief that those items of evidence were either admitted war oh or never addressed the trial court of in particular if you look at the three rules two rules of this court and that is rule two thirty nine the guardian jury instructions it requires that there need to be a factual or legal basis for the claim of either party for the basis of the reversal and if you look at the instruction conference in particular there is no mention of any evidentiary were legal basis in particular we're talking about two jury instructions number eight number twenty two of the defen one plaintiff well for twelve when it's twelve o four without the second paragraph defendant just objected and said they had their own offer never they argue any of the four bases says as a reason granted their second paragraph in trouble for him particular if you look at paragraph seventy four which was guardian defendants instruction number eight which is on page thirty for their brief there is no case law not in the heat of battle in a trial but in the quiet of chambers to review his or her decisions and it gives three reasons for that the first is that the house to review decision and quiet chambers second affords an adequate opportunity to assess the allegedly erroneous release and it says the third reason is merely general objections and subsequently raise an appellate arguments which the trial judge was at a party may not urge is here or on review of the ruling of the parties post from motion any point ground or relief not specified in the motion so if you look at the two instructions they talk about no where they specify any law or any evidence that would have been titled them to either these instructions and if you look at the trial court below anywhere there is an argument about sort of proximate c nowhere do they scuffs barricade the external crane they discuss signaling they talk about toggle pay nowhere in particular if you look at motions and eliminate in this court the only thing they race in the motions eliminate is radios the issue about radios they said midwest could have provided more radios and yet they don't even put that in our post promotion so and in fact there was no witness to cause because they violated not only he at the instruction conference they never specified any legal or factual basis for giving those two jury instructions but then on post trauma ocean they didn't argue that basis and if that's provided an extra will create if you look at paragraph thirty seven which they talk about mr panetta and if you look at paragraph thirty eight they talk again about mr panetta they always said it went to the contributory operator he would not be able to assist them by killing this truss which is twenty five foot long and in order to get it through the second and third floor he had operate the headline because it was narrower at this citation record because it was never offered in evidence when they say the midwest safety manual was erroneous or excluded by the trial judge again incorrect was never offer never once you only time the safety rules of midwest were discussed the only time in the trial was mr pena mr panetta testified in direct exam didn't touch the rules and cross examine him mr patten brought out the end of his cross exam that the judge ruled in disclosure for proof for getting well beyond what we're talking about here saying they open the door he door was open in respect to one rule not the rule book and she specifically asked mitch mr patten are you talking about you offer proof they never brought mr penn a combat talk about the rules you know want when we it to the bottom line they didn't even give the rule book to their own expert and has a score to where most of the cases before this cour talking about what rule we talk about what is a barricading parking rule whatever these rules are nowhere where do they discuss these rules in particular what we're talking about it clearly the judge didn't abuse her discretion because whether or not there was abuse of discretion and there was not it was never moved out and specifically all the rules of this court dealing with the specificity of jury instructions and post trama sions were violated and  the the meaning of the sub contract within the four corners of the sub contract it says he died in kentucky is to provide the equipment the labor the material the tools that's what it says and then here and if i would get to that because we don't have all the pages on our reply brief page two line two we should refer to mr jim tallies testimony which is pages and the record see fifteen thirty four to see fifteen thirty seven when we call it see fifteen thirty five so it should be all for those pages were jim tele the fellow who had the boots on the ground he's the brother of jeff tell i just tell you the superintendent who went and talked and was involved in the bid in november we're talking december now with the sub contractor and here to tell you the person boots on the ground in these deposition he talks about we never talked about crane secondly we could've used the next total crane why couldn't they because they needed these trusses on the eighth floor to build out to the wall to bring the piping and there was no there was nothing there they couldn't get to the a floor and get over they couldn't use the external crane because they can get over to walk so he just fine is that this is the person who's out there who's ten thousand a safety person he simply couldn't use the external created this time he's got i don't want my brother's talking about that's what claim would have made any difference he didn't even discuss it or argue it ended struction conference or in a post from ocean that the external crane went so approximate cost but as importantly it could have been used if you believe him tally who's the foreman designated safety person who's working there he claims we never discussed external crime never law and i know they want to now for the first time suggested mr known in the trial court below before judge moore because she's the one who had to make the decisions and i would suggest that they need to make a record and world for a trial court to abuse his or her discretion you have to let the judge call the balls and strikes if you will and now that didn't happen then happening now they complain about the sub contract which was never offered in evidence or their proposals or whatever and a crane they drop a truss which they choked they choked themselves using a single tray each and a single choke using the friction method and they're all expert mr byrne let's say a man say that thing's going to fall because you need a positive connection you need something like a nail you could put a nail underneath these jokers and it would prevent it from slipping or toenail it all the different positive ways in which you could have prevented this from happening and this was their job if you work at their sub contract they were to provide tools equipment or labor supervision this was their job their job it wasn't just a release job he was only there to do signaling period period and if you want to and i know part of their discussion goes to somehow an argument that was made by well regarding mr chest teles testimony regarding external crane well that's not in the mission this is about we represent a widow certainly she has no firsthand knowledge of what occurred mr bruce wasn't a witness nor was he had a fight as a witness this is so called admission was never court said you know what you united were in charge of this job which we were we were in charge of getting up the scaffolding and so it cannot be passable then anyone else could be the sole proximate cause of course there's a difference between control in and charges is that even the even the court recognized so what the court's ruling though was at the very beginning before before opening statement was that sole proximate cause was not going to be an issue and when we raised a motion for reconsideration just before opening statement the first things out of our mouth was sort of facts because in the court said no i rule that we are not going there were over and done with as a result and to protect the record we're asking your honor to give you twelve for with the second paragraph because we feel that there's evidence to support it and the court as i had ruled earlier i think the case law prohibits me from emitting evidence of b m w and midwest negligence in this case said since they have seldom can fake so as far as i know there shouldn't be any evidence in the record of midwest in b m w negligence proximate cause and that's why we're here we're here we're here to deal with those issues there's a lot of complaining about our post trial motion but there's a big difference between preservation and persuasion post trial motion is supposed to preserve if we can persuade the trial judge to change our mind wonderful but it's supposed to preserve and it doesn't take much under brown versus decatur it just takes a simple concise statement and we made those statements values thirteen there's the house trial motion page thirty one seventy three the court committed prejudicial error by barring united fro i'm its defense under this court's ruling united has been in constant two since constitutionally denied a chance to offer an empty chair defense page thirty one seventy five for them or united was entitle to argue that those  never would have been involved in this job this is the extra it was supposed to come up from the outside to go in and the reason why the reason why those gentleman became involved at all is because he m w didn't responsibility to acquire a crane is one country that a number of witnesses have also testified that it was easily able to utilize this external crane in order to elevate the wooden trusses at issue here terry really applied to manager in superintendent of b m w testified that he had inspected the job site where this work was going to be pe further testified that these wooden trusses could he have been inserted from the outside of the building this testimony is consistent with back of a number of other witnesses who all worked successfully to school all evidence about the external current date they didn't want that evidence to be heard if you want the jury to decide whether the safer they have mike really standing where he was standing or to us disagree with what i have to say what what we were taught were what our position is it's a jury question that's the whole problem here we were unable to we were able to to create a jury question in which they could have cross is going on here that's the problem in this case the jury never understood because players very successfully kept that information away from the jury let was the story there was a contract your pla is the big proposal it's signed by the parties and the big proposal is significant let's go look for just a second considerable more mount of money if united he had to bring the country if you can only imagine what it would cost to rent a crane so as part of this release date they attach prevented this tragedy from occurring it was a huge actual issue that needed to be resolved in front of the jury all those things about professor barnett and anything they also wanted to talk about the the external about a month wouldn't construction it's a case that came down about a month after this court's first decision reached and what happened in garcia vs rule is iron workers who had been allowed to use a crane to lift barrels of bolts were told by the general that they couldn't use this crane and in the end in doing the alternative process garcia was injured and so the contractor moved for summary judgment got summary judgment the first district reversed and said wait a second you were in control of a crane mr general contractor he couldn't do the work he way he wanted to do the of the of the injured person so and that's what we're saying yes to yes to the b m w all that information should all the evidence should have gone to the jury estimate west here's what happen guys that they don't need there's no one there from midwest who sent them to supervise like me to bring in my adult children to help me in a job and expecting my employer to supervise midwest doesn't have choke point from the side where it was having them grating the most resistance to the sun it starts going companies go all car life and the last the fatal the fatal one what happens is somehow signal from a much safer position and even ralph barnett said you should never be standing under a low we tried to get in the midwest rules we made an offer of proof yes to the midwest rules the author of proof was was steer this piece out it's going up above them with no headline goes out of his hand it's twenty five for tagline and for back to move away in this is and that i need forgot to move away and the very time that the piece was coming down so there's plenty of  five and we didn't have to ask for twelve or five at the point those raised in their brief the problem was we didn't hear of the ability even with what evidence was admitted to relate the evidence to the law the law force would have told our side of the story and we couldn't introduce it in this court when it sent this case back down pursuant to its mandate court remanded a case for a new trial and all issues afterward after finding the liability should be reversed in knowing this case be remanded the case for new trial on all issues and so much macaws case talks about a mr ray i tried the case mr a not only never testified there was never any offer proof of mr ray the b m w person who he claims now apparently said the crane could have been used well that was not ever raised below zero with judge moore and so it's hard to say she excluded that evidence when the subject of his testimony never came up so i don't know how the judge could have been in error because it's an imperious of discretion standard twelve zero for instruction would be relevant because there'd be no prejudice not given the second paragraph because he was not found so proximate cause he was found less than fifty percent follow so in reference to him it would not be germane crane the general contractor did lose the crane and put on a job site and then before the job was done the general contractor removed it they removed it and so they said that they are not a geisha once they pull down the job site radios period so you have to make an argument it was excluded yes but it was excluded but it was never argued all into court excluded saying they had and did that the evidence is not coming the first time when ordered from this court for the second time that somehow these are all admissions they never argued this below if you work it out judicial admissions of mr to tell he said had to do with their deposition testimonies concrete facts within their knowledge they never offered this up as a so called admission before this is the first time on appeal that they offer any arguments and clearly arguments a counselor's the civil practice act of ours we completely hypothetically n barricade in his shoe is applicable or blocking they call it we're going to say that that went to the issue so proximate cause before advancing on appeal nowhere nowhere in this entire court record they do not say the for your honor and in particular make sure yes plan does call for that and counsel missed that point because he said that they have to be specific or at least in particular and brown says in particular talk about the evidence or  law you have to particularly state the evidence in the law you just can't protect restate all these issues and not know we're nowhere below do they talk about any of these issues go into so proximate cause it wasn't preserved and