light most favorable to the not movement so favors the movement no contrary verdict based on the evidence could stand standard of review is to know the earth is against the mantis weight of the evidence where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable arbitrary and not failed to keep a proper lookout for other vehicles were turning left in the shoulder and the evidence overwhelmingly favor supplants position on both issues with regard to number turning left from the shoulder literally all of the physical evidence of the scenes of course of the accident happened that the defense reli martin as a sole evidence that they were travelling in the eastbound lane their testimony is not credible it lying to the investigating police about how the accident happened in an attempt to avoid liability for number and the story isn't supported by any of the scene evidence on the other twenty point zero one instruction it never failed to maintain a proper lookout while turning from a schuler you have a sense it's clear they were negligent in looking for approaching vehicles as motorists mr never had a duty to use reasonable care and driving his tractor reason would rather a slow moving five thousand  stand even when viewed in a light most favorable to the defense judgement i was standing overt it should have been entered alternately the opposite conclusion was clearly evident injuries decision not based on the evidence requiring a neutral section two of our brief we argue tractor must be used for a farm purpose to qualify for the exemption the plain language of the statute requires that the vehicle be both designed and used primarily as a farm implement a mode was designed as one a tractor issue was used primarily for municipal purposes of mo in the road shoulder so it should not have qualified for the exemption with regard to no evidence that a lack of turn signals or brake lights proximately caused the accident in the court said that because the plaintiff amnesia there was no way to prove that he saw the vehicle or there's strong evidence that he saw the vehicle as set forth in our brief the evidence shows there was clearly an act of avoidance and even the defense theory that he was passing requires that he see the track proximate cause consists of cause in fact in legal cause cause in fact when  experts contradicted looking at are some parts these factors made a problem affect the statement minimal where as a prejudicial effect of violating the speed limit was high exceptions to hearsay are supposed to be inherently reliable in the sack show that statement was not  amnesia and so no personal knowledge lastly the defense is not capable of showing that he had asked me to make the statements for those reasons a statement should have been excluded from evidence in section three b we argued that the trial court error is a matter of law by allowing the opinion support the fluid from the ruptured radiator and all the debris from the cycle or at its final resting place on north mt pleasant valley road aren't testified at trial consistent with his deposition testimony that cycle stopped right in the place where the collision occurred putting the point of impact north valley wrote it's common sense and one doesn't pass a vehicle traveling eastbound and intersection by going into the northbound lane it was obviously an act of avoidance to get there and that refutes all of mr burglars positions in this case regarding events prior to the collision because they are based on a collision occurring in westbound lane that didn't happen there and the plan of lacking sufficient time to react which clearly he did react under illinois law the admission of an expert's testimony requires a proponent to land adequate foundation establishing that the for information on which the expert basis is a binion is reliable must be sufficient data about the accident evidence to provide a reasonable basis for the expert's opinion and the testimony cannot be based on mere conjecture and yes clearly that didn't happen here court erred in allowing these baseless of kenyon's into evidence section three c we argued in the court as a matter of law by allowing defendants an expert to present demonstrative evidence using the tractor in an exemplar cycle st of all the evidence was not properly disclose under rule danger of unfair prejudice confusion of the issues or misleading the jury because it was based on numerous assumptions ignored evidence contrary to his theory collision in about at least one aspect of the case for which there was no identified score in the record that location was south and west and screamers leslie defendants failed to lay an adequate foundation for the evidence they got the facts wrong in the presentation like the way the wheels of the tractor were straight instead of turn or the way the cycles for a wheel was turned down instead of up require states that he unconcerned in the physics of objects in motion don't match is static demonstration he's unable to say what the angles of incidents are beyond pure speculation which is what his entire presentation was about resolution evidence to base his theory this testimony should have been excluded finally in session four of our brief we argued that the court abused its discretion when not fully advising the jury of all of the available negligence that the jury instruction congress we submit to the court i proposed instruction twenty one and argued that the instruction should include item d the number negligent drove to the northeast shoulder of the road ran over the plaintiffs in a way that never failed to keep a proper lookout for other vehicles both were refused by the court during the trial within an hour testified that he saw the plane as body go up and over the front of his tractor and come to rest on the the jury is fully capable of determining who the tractor driver behaved negligently based on the foregoing test my evidence as to substation a there is a general duty to use reasonable care not to cause harm to other motorist when driving for someone driving a large slow moving and dangerous piece of machinery like at issue it is reasonable to look behind when making any turn with newer and more and testify to doing so repeatedly still failing to see the approaching cycle in plain view the course given instructions were a failing to keep a proper lookout for other vehicles well turning from shoulder and be turning left from the short of the road i find the two instructions together in making a a contingent on and redundant with its line of negligence under b the jury was prevented from considering evidence of negligence and they found that the tractors are travelling on the roadway thank you justice burgess you have any questions i do thank you just this is where a jury is made credibility assessment and determination regarding conflicting  if there was a wayne of credibility as far as the witness testimony goes that then the jury failed to reasonably examine the evidence and i really don't see how you know light of the the obvious way in based on speculative and and speculative and ok mr smith i get it that's that your assessment of it but as you know the question of who to believe in a way to be given to the evidence is a decision for the trier of fact and then this case here they heard that evidence and from the verdict it appears that they did they did not see the case you have and other words when you look at the facts in this case that is from morris all of the officers that arrive from the the photographs the marks on the pavement in this case here the jury did not believe your expert and in fact from the verdict appeared to have given more credibility to the defense experts in this case so my question had to deal with the j l b would be precluded if this is in fact the case do you not agree move ahead on these and hit certain areas and so i would ask you this mr smith why is an attractor that's probably not more than being used to cut grass alongside the road be considered an act of husbandry well of moaning that would be occurring at a farm and and this is a situation where both the design and use of the tractor are fundamental to the exemption and for that reason you fundamentally different from from what you see in using this more at a farm you're constantly exposing the tractor to traffic in in the area in the roscoe township area and that's presenting a danger to  vehicle would not have such a duty and that is correct i don't know situational awareness choir's that you know where it was going around you but this was not an ordinary vehicle and that is the point here you know in the context that this occurred you've got this this five thousand pound tractor pulling a mole or it's a slow moving slow moving vehicle it's extremely large extremely heavy extremely long and when it's making that turn it's making that turn in such a way that it's basically creating a wall of metal across the intersection where now you you've got both nimer and martin saying that they check behind themselves repeatedly that they look behind to make sure there was nobody there and they didn't see anybody you know when you when you talk about duty that their actions show what a reasonable person does in that situation you know a duty to be safe and and they were attempting to be safe but they failed they failed to do they were lookout in your th amended complaint did you re plea deal equipment and turn signal violations regarding the tractor we did not your honor and your reply brief you admit you did not also address the proximate cause issue regarding whether the plaintive could see the track there's brakes or turn signal shouldn't this court considered that forfeited and those items forfeited so that should have been deemed a way that objection with regard to the failure to argue the proximate cause issue is as we again stated in the reply brief failed to argue it do it in b argument late argument that we made is the exact same argument that had made made previously as you know or asking the th please relook the omission and consider that argument in reaching the merits of not supreme court has provided courts with i believe there six a number of factors to consider when being asked to explain those that witness and their testimony which factors support your claim to bar by weeks before his deposition about the use of that exhibit correct i believe that is correct or not and you never a time we objected to the use you you also a couple of people and during the course of that ride day they were thrown from the hay rack and one of them died one of them was severely injured and the court in that case in trying to determine whether the the  d the action by the injured parties was was barred by the guest statute examined the definitions of farm tractor and motor vehicle in detail and they concluded that it wasn't just the nature of the vehicle it was the the use that it was being put to at that time the defined whether something was a motor vehicle you know in that case they were examine the guest statute but they also looked at the language  knowing can be a farm use it can also be municipal use as it was in this case you can be a domestic use if you're moaning near your yard it doesn't necessarily follow under the category of of a farm  use simply because it can be done on a farm so you would be time had i had a little john deere to cut my lawn and i drove it across the street it would have to be fully equipped with brake lights and turn signals it and also what it was being used for your honor the i don't believe that driving the it across the road would require you know that brief of a period would require that it be that embrace rights and turn signals that it's not a motor vehicle for that you would be driving it in the road typically john deere and you would use the country if you're your lawn but if it was is this case a much larger vehicle statement if he had no recollection of the accident why would he have made a statement and doesn't that lend some evidence that he didn't recall at least bits and pieces your honor and again the the effects of hydromorphone are are known to include confusion hesitation and cognitive difficulties at the same time he is he is receiving the logical evaluation beyond the finding of concussion right ok you know my colleague really made a series of questions about the jury's obligation to weigh the experts so i will let that go the justice mclaren i have no other questions thank you thank you  smith i believe that there's yes your relative to justice bridges questions regarding the failure to include the counts in the th complaint you claim that the defendants waived a waiver or forfeited the forfeiture reject correct there's a position here  yes i believe that we did you so you're saying that because the defendants didn't object to your abandonment of the counts that that constitutes a far future waiver how do you respond to the point that failure to include counts i believe as indicated by the supreme court and foxcroft relates to any waiver or forfeiture in so far as a defendant or another party when the purpose for the rule relates to what the trial court is supposed to be  you don't understand where i'm going with this it's this isn't just so much a question of forfeiture it's a question of putting the trial court in a position of understanding that it doesn't have to address these issues and raising it after the fact in so far as how it affects the cause of action it doesn't just relate to prejudice that might have applied to the defendant it relates to the entire case in so far as how the trial court   and you know obviously  apply the the plaintiffs indicated to a physician's assistant i believe there was call that he was going six thousand five hundred and seventy miles an hour is that correct  that is correct from the medical records here yes ok and were there any was there any evidence of skid marks or braking marks that were attributed to the motorcycle tires yes your honor and they appear quite prominently in the photos the there are clear skid marks and then scrape marks leading up to the point of collision  and our expert dan burton fire testified that based on the the angle taken by the cycle that it was a sharp angle that you don't ordinarily get in a passing maneuver it had to be an because it could not have been on the cycle as it was skipping along the ground he had to have been thrown in what's called a high side maneuver i say a maneuver results from breaking a bike and not locking up the brakes but at near threshold wobbles and throws the driver the bike goes down and continues in the same direction that it had been going and the thrown rider also continues in that same direction and that's consistent with what we have at the scene there were other skid marks on the road and i viewed the exhibit here and i know i'm not deceptive to my the evidence but the jury clearly had an opportunity to do that  only your expert testified about scene breaking and skid marks and fact the defense expert even talked about the one foot compression of the motorcycle size because the impact that the tractor without stopping so the only and correct me if i'm wrong but the only evidence about skid marks came from your expert is that correct your honor and believe my my expert testified to seen a very light skin mark at the scene that was prior to the friction marks and scrape marks that lead up to the site when i was talking about i guess skid marks i was talking about the friction marks touched on in questioning mr smith was that it is up to the jury in this case to weigh the evidence that they hear and come to a decision and what happened in this case the claim to have his day and he had an opportunity to present his case twelve people in the jury box and unfortunately for him he was unsuccessful but that doesn't mean that he didn't get a fair trial get in at his best in this appeal the issues that the plaintiff is raising for this court are really evidentiary issues which are in the sound discretion of the trial court to decide and as the trial judge judge tonsil said on her rulings on the record in this case and in her written a union denying the post trial motion and get very good reasons for those rulings  that decision to nine goes from motion plaintiff wants to come in now and complain about some evidence that they say the jury should not have been able to consider his problem  credibility whether a witness is credible is solely within the province of the jury in fact it's in the very st jury instruction that they get they get it and they get that instruction at the beginning of the case in at the end of the case  before it goes to to deliberation in this case the jury heard a lot of different evidence from eyewitnesses at the scene from police officers zisha and reconstruction experts they had an opportunity to view photographs of the vehicles at the scene that were taken that day taken later by number of experts photographs of the scene that were taken that day and other days and they even had an opportunity to see the actual tractor and an identical example or motorcycle that all evidence the jury had an opportunity to hear and see all of it and then it was up to them to weigh that evidence and to come to a decision the jury heard basically two different versions of this accident one offered by the plaintiff's reconstruction expert which was that the tractor's wrong shoulder the frederick never right in martin the people the gentleman driving the tractors the day of the accident the defendant's reconstruction expert two police officers at the scene that version of events was that the tractors were in the eastbound lane and the collision happened because the plaintiff on his motorcycle was attempting to pass as he enters the action in the westbound lane so the jury had the opportunity to hear all of that evidence and then they got then they had to decide two things one whether or not fred never was negligent in the operation of his tractor and that involved a couple of plane they could find that he wasn't negligent because no action of his cause the accident they could find that maybe he was negligent but the plaintiff was more than fifty percent contributory negligence so therefore he didn't have fault this isn't a i n ary decision it didn't have to decide one or the other they got to take all of the factors into account and then reach a decision  well one of the arguments he wants to make on appeal is that the jury should not have considered whether or not the plaintiff was contributory early negligent that there was somehow insufficient evidence or a lack of foundation you know putting aside mr burt meyers testimony about the plaintiff's negligence there were other pieces of claims negligence for the jury to consider such as his admission about his b p a walk in the emergency room and the testimony of his own expert that said if the tractors were in the eastbound lane of rocky road prior to the accident and the accident was the plaintiff's fault claim it didn't object to the issue of contributory negligence in the instruction that was given to the jury if he had a concern if he thought there was insufficient evidence of contributory negligence for the jury to consider his obligation at the time of the instructions conference was she who object and to offer and different  instruction he didn't do that in fact he tendered an instruction that defined contributory negligence he tendered and issues instruction that included frankly more allegations of contributory negligence than the one offered by the defense which is one actually accepted and read it to the jury there were instructions on the burden of proof for contributory negligence instructions on the use of the verdict forms and verdict form b which is the form that you would use if you're going to find in favor of the plaintiff and then subject to a reduction for contributory negligence he did not raise the issue with respect to plaintiff contributory negligence in the post trial motion or in has a particular issue and where there is no record the presumption is that the trial court properly exercised its discretion while we're talking about jury instructions with respect to the twenty  and instruction the plaintiff argues that was that his instruction should have been the one given to the jury not the defendant the instruction offered by the plaintiffs included four  parts is i think b and c were the ones that were actually given to the jury he did not raise with the issue of a which is failure to keep a proper lookout issue has been forfeited as the trial court noted in the post trial motion and plan to frankly waive this issue entirely by failing to include the jury instruction in the post trial motion or the record  that instruction conference for the court to be able to consider he doesn't cite any legal authority that supports that argument either specifically with respect to the issue hey you know contain that statement the ordinary duty of a motorist to write his car carefully not to cause injury to others i want to know that in that case that wasn't about whether or not that should have been given as an instruction to the jury it was a summary judgement case and whether or not there was a duty for a motorist to not get an air conditioning or heating unit at a hotel that caused caused an explosion and that was really about force the ability to not an issue that we had here and off putting all that aside the jury in this case actually got that instruction in seven thousand and one dollars which said the duty of every driver who vehicle using public highway to exercise ordinary care at all times to avoid placing himself or others in danger exercise or danger all times or void so they actually got that instruction but the question in the issues instruction isn't a question of duty it's a question of what is the issue in this case if you look at the comments to the jury instructions with their stripes the issues instruction the st thing that it says is an issue instruction tells the jury what the point in controversy are between the parties and thereby simplifies their task of applying the law to the facts they are to be jury instructions are to be viewed as a whole and reversible error occurs only when a party shows that the instructions misled the jury and seriously prejudice the parties right to fair trial nowhere in any place post trial motion or in his appellate reap just argue that somehow the jury was misled by the instruction that they got the issue in this case really the primary issue the one that the jury heard a lot of evidence about from the plaintiff x plaintiff's reconstruction expert from the defense's reconstruction expert is where were the tractors when they when didn't hear a very quiet will you please close yeah my last point on that issue is that if the plaintiffs provide full disclosure of the expert their area of expertise the subject matter of their testimony except track and the objection from  this case says that you did not one client with those rules regarding this demonstrative testimony from your reconstruction expert what your response to that they didn't and so the trial court didn't have an opportunity to reconsider that decision which is one of the thing or that are the you know let me just ask you this because the was the issue was that when he objected at the deposition was there an adequate foundation to allow his expertise so you're saying that you provided the details of that in your rule to thirteen f and to eighteen i would disagree that well it was a reenactment instruction or any theory of their case so long as it supports the evidence and struck the jury and so when you look at the proposed instructions by plaintiffs in this him the plaintiff's is just every deposition frankly testify that he is the only person who would have had knowledge of his speed prior to the occurrence it is an admission against his interest record that suggested that there was any issue with his capacity as simply being given a painkiller but there's no evidence in this record that it affected his capacity there's no presumption that i am aware of that giving somebody painkiller in this case or in any case per se impacts capacity to give a statement that wasn't my burden to prove if the plaintiff's took wanted to wanted to submit evidence that his capacity to actually been affected he certainly had the ability to develop that evidence and he didn't do so nevertheless the jury did hear evidence that  know that that was a potential a factor dilaudid and they were able to to consider that i would argue that his pain and the pain healers and this situation at glasgow's to wait not to admi driving on the shoulder right yes your honor all right so if you're driving substantial distances on the roadway as opposed to only mulling why does this remain a form piece of farm equipment it's a piece of farm equipment because that's how it's defined under the statute if it's the definition which the court trial court pertly found that it mat is that it designed in primarily used as a piece of our equipment and chapter twelve the vehicle code exams an entire category of vehicles from their requirements they have  whose use in year how often it's used how often your travels on the roadway aren't those factors to be considered no your honor they're not there's nothing in the statute that requires that kind of analysis in the plaintiff doesn't face any case law that applies that kind of analysis and in fact one of the cases that the plaintiff cites with respect to three unstra statutes in a wave so that it doesn't result in absurd results it talks about it's not particularly applicable because it's that novak curse the city of country club that's about as example occasion to pay for a catastrophic were injured police officers hushing health insurance premiums but the supreme court ultimately agreed with the city that fixed the time and when they had to start paying that as the date someone was judged disabled not the date of the injury and the point that they were making in that situation was that there was there would always be a hard and fast  date where disability was judged but a date of injury could be shifting if you were to apply the plaintiff's definition in this case that the definition would  am aware of that says there's nothing else anywhere in the vehicle code that says it's only a farm tractor if a farmer's driving it or that it's a regular tractor if it's owned by somebody else applying  different definition well is your position then you just look at the piece of equipment it either is or it isn't regardless of who's using your often it spews it being used or whether it's driven on a roadway yet what it looks like yes ok fair enough i have no other questions negligence between plaintiff think of and that is that correct i was also correct i have no further questions any other questions by the panel i have no further questions thank you thank you mr smith you one and one to be a plan is briefed on which mr billington actually based his opinions on the complete lack of physical evidence supporting the defendant's position the defendant number was driving on the road with cited no evidence at the scene that supports their position they referenced testimony by numerous martin but make an argument for how reasonable minds weighing that evidence could given any weight and their self interest in alliance with law enforcement at trial they make no argument against plaintiff assertion that defense expert roger burglar's opinions were flawed to the point of irrelevanc count six is allowed to stand brake lights and turn signals are clearly relevant then nd procedural arguments are for moot for section three a consistent with the nd district case gaillard vs campeon all the factual basis for all the arguments made series of opinions it were completely unsupported by factual evidence contradicted by scene evidence and contrary to his own witnesses after the acquirement set forth in his guide versus peter's there was no adequate foundation for the opinions there was no data and evidence to support them and they were based solely on conjecture and speculation and their response made no citations to the record to demonstrate the basis or foundation for any abridge meyer's opinions at issue and therefore conceded this issue on the merits as well initially testified to drive on a drive returning from the pavement has no legal duty to check for passing vehicles mr billington plans expert corrected that to say that all drivers need an essential situational awareness when making a turn with may include looking behind  a tractor driver is required to make a safe turn with proper look at someone driving a large slow moving and dangerous piece of machinery like the tractor at issue it's reasonable to look behind when making a turn both near and martin testified to doing so repeatedly and some part is the facts of the accident are all one act of negligence numerous negligent driving to the shoulder and then running over the plaintiff leg is also a substantial interest here and part of that negligence the consequences injury that is the most significant injury and so is the most significant part