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SECOND DIVISION
December 2, 2003

PRESIDING JUSTICE WOLFSON delivered the opinion of the court:

Plaintiffs sought damages for injuries resulting in thedeath of John F. Winters, Sr., when he became pinned between atollbooth and a truck driven by defendant Jackie L. Kline. Thejury returned a verdict for the plaintiffs, but foundplaintiffs' decedent 50% negligent in contributing to hisinjuries. The jury awarded $788,666.66, reduced by 50% to$394,333.33, for loss of financial support, benefits, goods, andservices to the widow. The jury awarded zero dollars for theother itemized damages listed on the verdict form.

Plaintiffs filed a motion for a new trial on the issue ofdamages only, contending the jury's verdict was inconsistentbecause it ignored proven elements of damages. The trial courtgranted the motion. Defendants filed an emergency motion toreconsider, contending a new trial for "damages only" was notappropriate in this case, where there was evidence of acompromise verdict by the jury. The court eventually granteddefendants' motion and ordered a new trial on all issues,including liability.

Plaintiffs appeal, asking us to vacate the trial court'sorder granting a new trial on all issues and reinstate its priororder for a new trial on damages only. We affirm the trialcourt.

FACTS

On April 3, 1997, defendant was driving his tractor-trailertruck for his employer, Winegard Company. Defendant had beendriving tractor-trailer trucks for 40 years, averaging about100,000 miles per year. His wife, Sidney Kline, was riding inthe passenger seat. At approximately 2:30 p.m., defendant wasdriving north on I-294, when he pulled into the tollway plaza at163rd Street. He saw no pedestrians outside of the toll booths. Plaintiffs' decedent was working in a tollbooth in the toll lanenext to defendant's truck.

After defendant paid the toll, he slowly began to moveforward out of the toll area. He did not check his mirrorsprior to starting. In his experience, defendant had seen tollworkers walk in front of vehicles that were stopped to pay tollsbut had never seen people walking in the area of the tollbooths. After defendant had pulled the truck forward a fewfeet, Sidney yelled, "stop" and said someone was pinned betweenthe toll booth and the trailer. Defendant looked in thepassenger side mirrors and saw decedent pinned on the side ofthe truck.

Sidney testified that her window was open. When theypulled into the toll booth, she saw a dollar bill blow out ofthe toll booth on their right. She heard decedent say to theperson in the car, "don't worry. I'll get it." She then sawdecedent exit the tollbooth through the door on the north sideof the booth and approach defendant's trailer. She lost sightof decedent and wondered if there was enough room for a personto get between the truck and the toll booth. As defendant waspulling the truck out, Sidney looked in the rearview mirror andsaw that decedent was pinned, shoulder to shoulder, between thebooth and the trailer.

Several toll workers testified they attempted to movedecedent but could not because he was pinned so tightly. Finally, a worker kicked in the window to the tollbooth, andthey released decedent's body and put him on the ground. Decedent regained consciousness and tried to get up. He hadblood trickling from his nose and clear fluid from his mouth andappeared to be in pain. The paramedics took him to thehospital, and he died a week later.

Two tollway workers, Mark Slavis, a line walker, and DianaPorro, an assistant supervisor, testified to the tollway's rulesand procedures. The "safety stripes" or "crosswalk stripes" runacross the lanes in front of cars when they are stopped to pay atoll. The proper procedure for crossing a lane is first to makeeye contact with the driver of the car, then cross inside thesafety stripes. When "spillage" of money takes place in a tolllane, the procedure is to inform the supervisor, change theoverhead light from green to red, secure the barrier gate, thenpick up the money. The tollway employees said this rule appliesto spillage in a lane, not on the island. Both workers sawdecedent on the island, not in the toll lane. They did not knowthe location of the dollar bill decedent allegedly wasretrieving. Porro also testified an appropriate procedure forspillage is to fill out an Unusual Occurrence Report to thetollway authority; a toll worker would not be penalized for lossof money by filling out a report.

The parties presented conflicting expert opinion testimonyon whether defendant breached the standard of care. ArthurAtkinson, the president of a commercial motor fleet safetyconsulting firm, testified for plaintiffs. He said the term"standard in the industry" means what the majority of the peoplein the industry is doing. The federal safety regulationsrequire a driver to have the capability to make a visual searchand understand the techniques and methods to do so. Thetechniques and methods are established by the industry. Beforea driver moves a vehicle, he should make a visual scan from theleft mirror to the right mirror, taking from 4 to 12 seconds. According to the handbook of the Professional Truck DriverInstitute of America, drivers should exercise a greater duediligence when in and around toll booths because of thepossibility someone may exit his or her vehicle.

After reviewing several depositions, Atkinson said hebelieved defendant fell below the standard of care demanded bythe transportation industry when he failed to look and use hismirrors before he pulled out from the toll booth area. Becausethe environment was changing, he had to look in his mirrors tomake sure there was nothing different around him between thetime he pulled in and before he pulled out.

Defense expert Jon Cook testified he is a safety consultantfor Motor Carrier Safety Consulting Incorporated (MCSC). Hesaid defendant had the necessary experience and skills tooperate the tractor-trailer. In Cook's opinion, defendant'sapproach to the tollbooth was in compliance with what areasonable trucker would do under like conditions. He paid histoll and started looking ahead to where potential danger wouldbe. Based on his review of the Federal Motor CarrierRegulations, Cook believed defendant did not violate any of theregulations with regard to his conduct in and around thetollbooth. As he was leaving the area, he scanned the area,checking to see if there were any potential hazards ahead ofhim. Cook concluded defendant acted as a reasonable driverwould under the same or like circumstances.

Further evidence was presented as to the extent ofdecedent's injuries, his pain and suffering, medical expenses,funeral expenses, and the loss of his society and income to hiswidow and four adult children. The jury was instructed on thepresumption of substantial pecuniary loss to the widow andchildren. See Illinois Pattern Jury Instructions, Civil, No.31.04 (3d ed. 1995) (hereinafter IPI Civil 3d).

On September 9, 2002, the jury entered a verdict forplaintiffs, but found decedent was 50% contributorily negligent. The defendants proffered a special interrogatory, which wassubmitted to the jury with the jury instructions. The specialinterrogatory asked whether the jury found decedent's conductwas greater than 50% of the proximate cause of his injuries anddamages. The jury answered this question in the negative. Thejury awarded plaintiffs $788,666.66, itemized as follows:

As to Count I:

1. Funeral Expenses                          $0

2. Medical Expenses                         $0

3. Loss of financial support,

benefits, goods, and services

to Angeline Winters                           $788,666.66

4. Loss of society to the

widow, Angeline Winters and

to each of John F. Winters,

Sr.'s children                                      $0

               TOTAL                                 $788,666.66

As to Count II:

1. Disability                                       $0

2. Pain and Suffering                       $0

               TOTAL                                $0

The damages were reduced by 50% to $394,333.33.

The court entered a judgment order on the verdict onSeptember 11, 2002.

On October 9, 2002, plaintiffs filed a post-trial motionseeking a new trial on the issue of damages. Plaintiffscontended the jury's damage award was inconsistent because itdisregarded proven elements of damages. Defendants filed aresponse, contending the verdict was substantial and consistentwith total verdicts awarded under similar circumstances. Alternatively, defendants, in their written response, contendedif the trial court ordered a new trial, the trial should be ofthe entire case on all issues. According to defendants, thejury's verdict suggested it may have compromised its liabilityevaluation based on sympathy for decedent's widow. On January3, 2003, the court granted plaintiffs' motion, ordering a newtrial on damages.

On January 16, 2003, defendants filed an emergency motionto reconsider, contending a new trial for "damages only" was notappropriate in this case, where the issues of liability anddamages were intertwined, liability was contested, and there wasevidence of a compromise verdict. Plaintiffs brought a motionto strike defendant's motion, contending it was not a motion forreconsideration, but a motion for new trial, which was filed toolate. Plaintiffs also filed a response to defendants' motion. The court denied plaintiffs' motion to strike, granteddefendants' motion to reconsider, vacated its January 3, 2003,order, and ordered a new trial on liability and damages. Thecourt entered its written order on January 23, 2003. We grantedthe plaintiffs' petition for leave to appeal.

DECISION

On appeal, plaintiffs contend the trial court abused itsdiscretion by: (1) ordering a new trial on liability as well asdamages; (2) denying plaintiffs' motion to strike defendants'emergency motion to reconsider; and (3) granting the reliefrequested in defendants' emergency motion to reconsider.

A trial court's ruling on a motion for new trial will notbe reversed unless there is an affirmative showing that itclearly abused its discretion. Maple v. Gustafson, 151 Ill. 2d445, 455, 603 N.E.2d 508 (1992). The trial court is in asuperior position to consider errors that occurred, the fairnessof the trial to all parties, and whether substantial justice wasaccomplished. Smith v. City of Evanston, 260 Ill. App. 3d 925,932-33, 631 N.E.2d 1269 (1994), citing Magnani v. Trogi, 70 Ill.App. 2d 216, 220, 218 N.E.2d 21 (1966).

A new trial limited to the question of damages will begranted only where: (1) the jury's verdict on the question ofliability is amply supported by the evidence; (2) the questionsof liability and damages are sufficiently distinct such that atrial limited to the question of damages would not be unfair tothe defendant; and (3) the record suggests neither that the juryreached a compromise verdict, nor that, in some identifiablemanner, the error which resulted in the jury's awardinginadequate damages also affected its verdict on the question ofliability. Midland Hotel Corp. v. Reuben H. Donnelley Corp.,118 Ill. 2d 306, 319-20, 515 N.E.2d 61 (1987); Robbins v.Professional Construction Co., 72 Ill. 2d 215, 224, 380 N.E.2d786 (1978). "These factors reflect a concern that where issuesof liability and damages are closely intertwined, a new triallimited to the issue of damages would unfairly permit theplaintiff to circumvent the necessary proof of liability." Midland, 118 Ill. 2d at 320. See also McCarthy v. Bach, 204Ill. App. 3d 691, 693, 562 N.E.2d 352 (1990).

The evidence supporting the verdict need not reach thelevel necessary to direct a verdict. Robbins, 72 Ill. 2d at224. However, it must be clear from the record that there wassufficient evidence to find defendant liable, and the jury didnot confuse the issues of liability and damages. Midland, 118Ill. 2d at 320.

Plaintiffs contend the jury's verdict on liability wassupported by the evidence, and the only part of the jury'sverdict that was against the manifest weight of the evidence wasits damages award. Plaintiffs point to the evidence at trialthat despite having a semi-truck equipped with mirrors thateliminated any blind spots, defendant failed to check hismirrors before pulling out of the lane, thereby pinningdecedent. Plaintiffs contend the jury did not confuse theissues of damages and liability, because its verdict onliability was reaffirmed by its answer to the specialinterrogatory and the unanimous polling of the panel.

Defendants respond that the evidence of defendants'negligence--failing to look in a rearview mirror in an areawhere pedestrians would not reasonably be expected--was weak,while the evidence of decedent's negligence--proceeding into anarea of obvious and imminent danger, in violation of tollwaypolicies--was strong. These facts, combined with the jury'sverdict ignoring several elements of damages, awarding nothingunder the survival count, indicate a compromise verdict,requiring a new trial on all issues. The defendants contend thejury's 50% comparative fault finding also suggests a compromiseverdict because the jury entered its finding after beinginstructed that if it found decedent to be any more than 50% atfault, recovery would be barred. Thus, the jury could havecompromised in diminishing the share of decedent's fault belowwhat the evidence demonstrated.

It is apparent to us that the trial court concluded thiswas a compromise verdict. We find the trial court did not abuseits discretion in vacating the jury's verdict and ordering a newtrial on damages and liability. The jury's award of zerodamages for each of the separate elements of damages, with theexception of loss of financial support, benefits, goods, andservices to the widow, suggests the jury may have been motivatedby sympathy for decedent's widow. Its verdict may have confusedthe issues of liability and damages.

Jury verdicts which indicate compromises were made ondamages and liability cannot be allowed to stand. Svetanoff v.Kramer, 80 Ill. App. 3d 575, 578, 400 N.E.2d 1 (1979). While averdict of zero damages is proper if there is evidence nodamages were suffered, an award of damages that does not bear areasonable relationship to the evidence is an indication of acompromise verdict. Svetanoff, 80 Ill. App. 3d at 578. Webelieve that is true whether the award was zero or aninsignificant sum. Plaintiffs bear the burden of showing thejury's verdict was not a compromise of liability againstdamages. DeFreezer v. Johnson, 81 Ill. App. 2d 344, 348, 225N.E.2d 46 (1967). They did not do so to the trial court'ssatisfaction.

The evidence of liability against defendant was not soclear that there is no issue on this point to be tried by asecond jury. See McCarthy, 204 Ill. App. 3d at 693 (affirmingdenial of a new trial on damages where jury found both partieswere 50% at fault, but found total damages to be zero);DeFreezer, 81 Ill. App. 2d at 348 (remanding for a new trial onall issues where sharply contested issues of defendant'snegligence and plaintiff's due care suggested a compromiseverdict). There was conflicting expert opinion testimony onwhether defendants were at fault. There was additionaltestimony suggesting decedent may have been responsible for hisinjuries by disregarding tollway procedures. The jury foundboth parties equally at fault, and the plaintiffs do notchallenge that determination.

We are not persuaded by plaintiffs' contention that thejury's answer to the special interrogatory showed it did notconfuse the issues of liability and damages. If the jury didcompromise liability and damages, the compromise necessarilywould include a negative answer to the interrogatory. To holdthe decedent more than 50% responsible for his injuries wouldhave precluded the jury from awarding any damages. 735 ILCS5/2-1116(c) (West 2000); Hobart v. Shin, 185 Ill. 2d 283, 290,705 N.E.2d 907 (1998). We hold the trial court did not abuseits discretion by modifying its order granting a new trial ondamages to a new trial on all issues.

Plaintiffs contend the trial court abused its discretion indenying their motion to strike defendants' motion to reconsider. Plaintiffs say defendants' motion did not fit within the purposeof a motion to reconsider: to bring to the court's attention (1)newly discovered evidence which was not available at the time oftrial; (2) changes in the law; or (3) errors in the court'sprevious application of existing law. Kaiser v. MEPC AmericanProperties, Inc., 164 Ill. App. 3d 978, 987, 518 N.E.2d 424(1987).

Plaintiffs further contend the defendants' emergency motionto reconsider actually was a post-trial motion for new trial,which did not meet the criteria for such a motion and was notfiled within 30 days pursuant to section 2-1202 of the Code ofCivil Procedure. 735 ILCS 5/2-1202 (West 2000). A party whofails to seek a new trial in a post-trial motion within 30 daysof entry of judgment, waives the right to apply for a new trial. 735 ILCS 5/2-1202(c),(e) (West 2000).

Defendants respond that they did not seek relief from thejudgment. Rather, after the court entered its order granting anew trial on damages, they sought relief from the interlocutoryorder that had vacated the judgment and granted a new trial. Their motion to reconsider properly asked the court to correcterrors it had made in previously applying the law.

We agree with defendants. Defendants' motion to reconsiderwas not a motion for new trial, but was a motion asking thecourt to reconsider its prior order granting a new trial toplaintiffs on the question of damages. Even if defendants'motion could be characterized as a motion for new trial, therewas no requirement for defendant to file such a motion beforethe court could modify its order. The court's order for a newtrial on damages was an interlocutory order vacating the priorjudgment, and the court was free to modify it at any time.

The granting of a new trial following the filing of a post-trial motion is not a final judgment. Stephens v. Taylor, 207Ill. 2d 216, 224, 797 N.E.2d 679 (2003); Gibson v. Belvidere,326 Ill. App. 3d 45, 49, 759 N.E.2d 991 (2001). An order for anew trial does not settle the merits of the case, terminate thelitigation between the parties, or relieve the court of itssubject matter jurisdiction. Richichi v. City of Chicago, 49Ill. App. 2d 320, 325, 199 N.E.2d 652 (1964). An interlocutoryorder may be reviewed, modified, or vacated at any time beforefinal judgment. Kemner v. Monsanto Co., 112 Ill. 2d 223, 240,492 N.E.2d 1327 (1986).

The trial court's decision is supported by Freeman v.Chicago Transit Authority, 33 Ill. 2d 103, 210 N.E.2d 191(1965), relied on by defendants. In Freeman, the trial court onits own motion set aside the special finding of the jury, on theground that it was against the manifest weight of the evidence,and entered judgment on the verdicts. The supreme court held itwas within the trial court's authority to do so. Freeman, 33Ill. 2d at 105-106.

The court cited cases in other jurisdictions establishingthe authority of a trial court to grant a new trial on its ownmotion. Freeman, 33 Ill. 2d at 106. "These decisions are basedupon a recognition that the role of a trial judge is not that ofa presiding officer or an umpire, and that he is responsible forthe justice of the judgment that he enters. The defendant'sargument would take away that responsibility and tend to reducehis role to that of an automaton." Freeman, 33 Ill. 2d at 106. Plaintiffs compare this case to Robbins v. ProfessionalConstruction Co., 72 Ill. 2d 215, 380 N.E.2d 786 (1978). Thecircumstances in this case differ from Robbins. In Robbins, thejury returned a verdict for plaintiff in the amount of $25,000. The defendants filed a post-trial motion requesting judgmentnotwithstanding the verdict. The plaintiff filed a motion for anew trial on damages only, or, alternatively, for a new trial onall issues. The trial court granted the plaintiff's motion fora new trial on damages only. In the second trial for damages,the jury awarded plaintiffs $120,000. The trial court enteredjudgment on the verdict. The defendants filed a post-trialmotion requesting a new trial on all issues, includingliability. Robbins, 72 Ill. 2d at 219-20.

The supreme court held the defendants' failure to request anew trial on the question of liability following the first trialprecluded them from seeking such relief after the second trial. Robbins, 72 Ill. 2d at 223. The defendants had argued they didnot have to request a new trial following the first trialbecause the trial court's order granting a new trial on damagesonly was equivalent to a directed verdict for plaintiff onliability. The supreme court disagreed, finding the two werenot substantially equivalent. Robbins, 72 Ill. 2d at 224. Acourt's order granting a new trial on the issue of damages isnot a directed verdict on liability, but merely an affirmance ofthe jury's verdict on that question. Robbins, 72 Ill. 2d at224-25.

In this case, the trial court granted the plaintiffs'motion for a new trial on the question of damages, but a secondtrial never took place. The only judgment in this case was thejudgment entered on the jury's verdict on September 11, 2002. After the court granted plaintiffs' motion for a new trial ondamages, that judgment was vacated, and there was no finaljudgment. See Gibson, 326 Ill. App. 3d at 48-49. Defendantswere not required to file a motion for new trial. The trialcourt modified its order for new trial by granting defendants'motion to reconsider and ordering a new trial on liability anddamages. There was no abuse of discretion.

CONCLUSION

We affirm the trial court's order granting a new trial onliability and damages.

Affirmed.

CAHILL, and BURKE, JJ., concur.