                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 02-1041
LORETTA M. ALIOTTA,
                                         Plaintiff-Appellant,
                             v.

NATIONAL RAILROAD PASSENGER CORP., et al.,
                                      Defendants-Appellees.
                       ____________
           Appeal from the United States District Court
                 for the Central District of Illinois.
      No. 99 C 2034—David G. Bernthal, Magistrate Judge.
                       ____________
 ARGUED SEPTEMBER 19, 2002—DECIDED JANUARY 3, 2003
                   ____________


 Before CUDAHY, DIANE P. WOOD and WILLIAMS, Circuit
Judges.
   CUDAHY, Circuit Judge. Loretta Aliotta, widow and
executor of the estate of Joseph Aliotta, appeals an ad-
verse judgment in a wrongful death lawsuit against the
National Railroad Passenger Corporation (Amtrak), the
Illinois Central Railroad Company (IC) and Gary Gilmer,
an Amtrak engineer. A jury verdict was entered against her
in the Northern District of Illinois after the case was
2                                                    No. 02-1041

removed to federal court by Amtrak.1 Loretta argues that
she was unfairly prejudiced by certain rulings on evidence
and jury instructions. Finding critical jury instructions to
be inadequate statements of Illinois law, we reverse and
remand for a new trial.


                                I.
   Joseph Aliotta, a 69 year-old former nurse’s aide, lived
with his wife Loretta in Watseka, Illinois, a town just
south of Kankakee near the Amtrak route between Chi-
cago and Carbondale. Two to three times a year for about
fifteen years, Joseph would take the train north from near-
by Gilman to Chicago to visit his sisters. Two passenger
trains operate northbound between Gilman and Chicago,
an evening local train from Carbondale to Chicago and
a morning express train which originates in New Orleans.
In late 1996, Amtrak changed its schedules, and the ex-
press train no longer stopped at Gilman.
  On July 30, 1997, Joseph Aliotta called Amtrak to find
out when the train to Chicago would be at Gilman station,
and was told 7:30. Unfortunately for Joseph, this turned
out to be the scheduled stop for the evening train. Doubly


1
  Federal question jurisdiction exists for congressionally incorpo-
rated corporations under 28 U.S.C. § 1331. See Pac. R.R. Removal
Cases, 115 U.S. 1 (1885); Osborn v. Bank of the United States,
22 U.S. (9 Wheat.) 738 (1824). The limitation to this basis of
jurisdiction found in 28 U.S.C. § 1349 (often described as a
reaction to Pacific Railroad) does not apply to congressionally
incorporated entities, such as Amtrak, more than half of whose
capital stock is owned by the federal government. Through the
interaction of these statutes and cases, federal courts have
jurisdiction over all cases involving Amtrak, regardless of the
cause of action. See, e.g., In re Rail Collision Near Chase, Md. on
Jan. 4, 1987 Litig., 680 F. Supp. 728 (D. Md. 1987) (finding fed-
eral jurisdiction over Amtrak).
No. 02-1041                                               3

unfortunately for Joseph, the morning train would pass
through Gilman almost precisely twelve hours earlier, but
without stopping.
  On the morning of July 31, Loretta drove her husband
to the Amtrak station. After standing with him for a
while on the platform, she went back to her car and waited
for him to board the train. The train came and passed,
without stopping, and she found Joseph dead about 180
feet down the tracks from the platform. What exactly
happened to Joseph was a matter of dispute at the trial.
Witnesses for the plaintiff said that Joseph was standing
on an “island platform” along which the train whizzed by,
suggesting that Joseph was impacted by the side of the
train or was somehow “sucked under.” This platform, the
plaintiff argued, is dangerously narrow to stand on while
trains are passing, and there were no signs warning pas-
sengers not to stand there when waiting for trains. Wit-
nesses for the defendants (the engineers on the passing
train) said that Joseph was actually crossing the tracks
in front of the train, and was hit head-on.
  One defense witness, Thomas Prendergast, a Risk Man-
ager for the defendant IC, stated during his deposition that
high-speed trains create dangerous vacuums along and
near their sides, which can potentially suck bystanders
to their deaths. The trial judge refused to allow this tes-
timony into evidence on the ground that it neither met
the requirements for expert testimony under Fed. R. Evid.
702 nor was admissible as an admission of a party-oppo-
nent under Fed. R. Evid. 801(d)(2). The plaintiff appeals
the exclusion of Prendergast’s statements on the ground
that they qualified as admissions under Fed. R. Evid.
801(d)(2)(D). The plaintiff also appeals the trial judge’s
exclusion, on the ground that there was a danger of unfair
prejudice, of a photograph of the deceased’s battered body.
Fed. R. Evid. 403. The plaintiff contends that the condi-
4                                               No. 02-1041

tion of the body is probative of its position when struck
by the train.
  Finally, the plaintiff finds fault with several of the jury
instructions relating to the appropriate duties of care to
be exercised by the parties.


                             II.
  We review a district court’s evidentiary rulings for an
abuse of discretion. United States v. Colston, 936 F.2d 312,
317 (7th Cir. 1991). We review jury instructions with def-
erence, analyzing them as a whole to determine if they
accurately state the law and do not confuse the jury. Maltby
v. Winston, 36 F.3d 548, 560 (7th Cir. 1994). In this analy-
sis, we must first determine whether the instructions in
question misstate the law or fail to state it fully. If this
requirement is met, we then determine whether the inad-
equate statements confused or misled the jury causing
prejudice to a litigant. Id. The parties agree that we
should apply Illinois law to substantive issues. See Hollus
v. Amtrak Northeast Corridor, 937 F. Supp. 1110, 1114
(D.N.J. 1996) (explaining that the reach of Erie Railroad
Co. v. Tompkins, 304 U.S. 64 (1938), extends beyond diver-
sity actions to cover federal question jurisdiction cases in
which there is a state law cause of action).


                             A.
  In his deposition, Thomas Prendergast, Risk Manager
for the IC, made statements highly damaging to his em-
ployer’s interests:
    Well, the train is so large, it creates a vacuum right
    next to the train. And that vacuum will pull a person
    towards the train who is standing too close. You would
    think it would blow you away from the train, . . . [b]ut
No. 02-1041                                                  5

    it’s just the opposite. It would actually pull you in clos-
    er to the train. If you were standing within a few feet
    of a passenger train going 79 miles an hour, there’s a
    very good chance that you would be killed. Even though
    you would be trying to resist that, falling near the
    train, you would be pulled right in.
    ...
    Certainly, [you] would be pulled in if the train went
    by that station at 79 miles an hour and [you] were
    standing on the yellow line or any closer than that
    yellow line, certainly [you] would be pulled into the
    train and a good chance that [you] would be injured.
Prendergast Dep. at 46-47, 51. According to the plain-
tiff’s witnesses, Joseph Aliotta was standing on an “island
platform” which had tracks running on both sides but
was only five feet wide, too narrow even to bother paint-
ing yellow warning lines (as such lines would leave a
pathetically narrow space in which to stand). This “vacuum
theory” (apparently related scientifically to the Bernoulli
effect) as presented by Prendergast became the plain-
tiff’s principal theory of Joseph’s demise and a key compo-
nent of her attempt to show as negligent those responsi-
ble for building the platform and failing to instruct pas-
sengers not to stand on it while waiting for trains.
  The defendants made a motion in limine to preclude
the plaintiff from presenting Prendergast’s testimony at
trial, resting their argument on two grounds: Prendergast
is not qualified to offer expert scientific testimony under
Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharmaceu-
ticals, Inc., 509 U.S. 579 (1993), and Prendergast’s employ-
ment with the IC is not such as to make his statements
admissible as admissions under Fed. R. Evid. 801(d)(2)(D).
The district court agreed with the defendants on both
grounds and prevented the plaintiff from introducing the
deposition testimony. Just as Prendergast’s deposition
6                                                  No. 02-1041

statements were excluded on two distinct grounds, we
note that there are two different ways in which Prender-
gast’s testimony could have been admitted. It could be
admitted for the truth of the matter asserted in it, requir-
ing the trial court to consider both the reliability of the
science, pursuant to Daubert and Rule 702, and any hear-
say issues. Or it could be admitted solely to show that
Prendergast’s employer, the IC, was aware of certain risks,
regardless of those risks’ scientific basis. In this latter case,
with a limiting instruction to disclaim the statements’
scientific validity, there is no Daubert or hearsay problem.
We will treat these alternatives separately.


                               1.
  Perhaps recognizing the significant hurdle for expert
testimony of complying with the Daubert standards, the
plaintiff fairly early on gave up trying to qualify Prender-
gast as an expert witness. Indeed, she never even took
the procedural step of disclosing him as an expert, Fed. R.
Civ. P. 26(a)(2), and does not appeal the district court’s
ruling that Prendergast in fact does not qualify. We briefly
note that this ruling, excluding the deposition testimony
as non-expert scientific testimony (having scant indicia
of reliability), was correct. The district court took into
consideration, among other things, a defendant-submitted
report by an engineer demonstrating that any “vacuum
effect” would be so slight that a person could not possibly
be “sucked in.” At a subsequent hearing, Prendergast
also backed away from his emphatic deposition claim, ex-
plaining that there was no written documentation he could
find, from the IC or elsewhere, of the danger of being
sucked into the side of a train. Given the scientific nature
of Prendergast’s statements, and their evident unreliabil-
ity, the defendants’ motion in limine was properly granted.
Daubert, 509 U.S. at 589 (holding that “the trial judge
No. 02-1041                                                   7

must ensure that any and all scientific testimony or
evidence admitted is not only relevant, but reliable”).
  Prendergast’s deposition testimony was thus excluded
on the ground that it was scientific evidence but unreli-
able; the exclusion was not an application of the hearsay
rule. Nonetheless, the plaintiff argues that the evidence
should be admitted as an admission under Fed. R. Evid.
801(d)(2)(D).2 But there are complications in this ap-
proach. Rule 801(d)(2), on its face, merely defines as non-
hearsay certain hearsay-like evidence. The plaintiff di-
rects us to the widely accepted rule that admissions of
a party-opponent under Rule 801(d)(2) are accorded gen-
erous treatment in determinations of admissibility. See,
e.g., Fed. R. Evid. 801 advisory committee note (stating
that “[n]o guarantee of trustworthiness is required in the
case of an admission” and that admissions enjoy “free-
dom . . . from the restrictive influences of the opinion rule
and the rule requiring first-hand knowledge”); Russell
v. United Parcel Serv., 666 F.2d 1188, 1190 (8th Cir. 1981)
(holding that “firsthand knowledge is not required where
admissions are involved”). Despite the scientific but unre-
liable nature of Prendergast’s statements, they might
still be admissible if they were Rule 801(d)(2) admis-
sions, and Rule 801(d)(2) admissions were not subject to,
or enjoyed freedom from, Daubert and Rule 702. The lat-
ter is a question the trial court did not reach, since it held
that Prendergast’s statements do not qualify as party-


2
   Rule 801(d). Statements which are not hearsay.—A statement
is not hearsay if—
      ...
      (2). Admission by party-opponent. The statement is offered
    against a party and is . . . (D) a statement by the party’s
    agent or servant concerning a matter within the scope of the
    agency or employment, made during the existence of the
    relationship . . . .
8                                                   No. 02-1041

opponent admissions in the first place. We believe that
the district court erred in this finding, and that Prender-
gast’s statements do fall within the confines of Rule
801(d)(2)(D). This belief notwithstanding, Prendergast’s
statements, offered for the truth of the matter contained
in them, were appropriately barred.
   In this connection, there are two relevant requirements
under Rule 801(d)(2)(D). First, Prendergast’s deposition
testimony must be an admission. Second, the statements
must be made “concerning a matter within the scope” of
Prendergast’s employment.3 Prendergast’s deposition tes-
timony easily meets the first requirement. To qualify as
an admission, no specific “against interest” component is
required. See United States v. McGee, 189 F.3d 626, 631
(7th Cir. 1999) (holding that there is no “requirement that
admissions by a party-opponent be inculpatory” and that
“the statement need only be made by the party against
whom it is offered”). Because the deposition is being of-
fered against the IC, it qualifies as a vicarious admission
if it meets the other Rule 801(d)(2)(D) requirement that
the statement has to be “within the scope . . . of employ-
ment.”
  Thus, we must ask whether the admission was made
within the scope of Prendergast’s employment. The law
in this area is somewhat muddled because the great bulk
of cases interpreting what is within an employee’s “scope
of employment” deals with employment discrimination.
In those cases, many courts, including the Seventh Circuit
in Williams v. Pharmacia, Inc., 137 F.3d 944, 950-51 (7th
Cir. 1998), have held that the declarant must be involved
in the decisionmaking process affecting the employment


3
  There is no doubt here that, whatever the scope of his employ-
ment, the statements were “made during the existence of the
relationship,” i.e., he was then (and still is, apparently) a Risk
Manager.
No. 02-1041                                               9

action involved (i.e., the declarant must be in manage-
ment or in the company personnel function) in order for
his statements to qualify as having been made within the
scope of his employment. The defendants note that the evi-
dence shows that Prendergast served merely in an investi-
gatory capacity; he held no decisionmaking authority with
respect to the operation of the railroad.
  We agree, however, with the plaintiff that this is a
mistaken reading of the case law. Rule 801(d)(2)(D) admis-
sions can be made “concerning [any] matter within the
scope of the . . . employment.” See Fed. R. Evid. 801 advi-
sory commitee note, 1972 Proposed Rules (noting that
since “few principals employ agents for the purpose of
making damaging statements,” admissible admissions
may be made as to all matters within the scope of the
agency or employment and include more than just state-
ments made in circumstances meeting “the usual test
of agency”). While the hiring/firing/promoting/demoting
decisionmaking authority of the declarant may be critical
in employment cases in which the admission deals with
hiring/firing/promoting/demoting-type decisions, no sim-
ilar requirement exists in other contexts. The only require-
ment is that the subject matter of the admission match
the subject matter of the employee’s job description.
  It clarifies matters to consider how “scope of employment”
is defined in other tort claims. To qualify an admission,
an employee need only be performing the duties of his
employment when he comes in contact with the particular
facts at issue. See Polec v. Northwest Airlines (In re Air
Crash Disaster), 86 F.3d 498, 536 (6th Cir. 1996) (hold-
ing that, where an accident investigation is conducted
as part of a vice president’s duties, comments made dur-
ing it are admissions under Rule 801(d)(2)(D)); Wilkinson
v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1566-67 &
n.12 (11th Cir. 1991) (holding that it is not within the
scope of a cabin steward’s employment to know whether
a door outside of his work area is defective, where there
10                                              No. 02-1041

is no showing that he “legitimately acquired knowledge of
the defective door in the course and scope of his employ-
ment, e.g.[,] he [was] ordered to the area in question, or
told of the problems with the doors in connection with his
duties”). Comments made by an operator of a vehicle or
machine about the actions he took in the course of his job
also qualify. See, e.g., Grayson v. Williams, 256 F.2d 61, 66
(10th Cir. 1958) (allowing against his employer a truck
driver’s admission of high speed); Martin v. Savage Truck
Line, 121 F. Supp. 417, 419 (D.D.C. 1954) (reasoning that
not to allow the vicarious admission of a truck driver would
be like requiring “the truck [to have] been operated by
an officer or the board of directors of the [c]orporation
owning the truck; and trucks are not operated that way”).
  Prendergast’s statements were made within the scope
of his employment. Prendergast’s job is to investigate
accidents, and in doing so, he speaks with other railroad
employees in determining the causes and potential causes
of train accidents. The “vacuum theory” was knowledge
he had acquired during the course of his job. Now, if he
had said in his deposition that Joseph had died by being
sucked into the side of the Amtrak train, that statement,
being a conclusion, may arguably lie just outside of the
scope of his employment—his job did not entail, according
to the record, drawing such conclusions from the facts he
gathered. General information about the causes of train
accidents, however, is knowledge and experience gathered
and utilized on his job. Further, we do not believe that
the fact that the information here is somewhat scientific
in nature defeats the fact that it was made within the
scope of his employment. While Prendergast is not em-
ployed as a scientist, general scientific or mechanical
knowledge is undoubtedly learned and applied in the
course of his job investigating accidents. Thus, we believe
that Prendergast’s statements are not hearsay under
Rule 801(d)(2)(D) and might, if there were no other objec-
tions, be admitted as admissions against the IC.
No. 02-1041                                                  11

  The question remains whether there are other objec-
tions. The plaintiff would have us hold that, as an 801(d)(2)
admission, the testimony is admissible regardless of cer-
tain other considerations. The 1972 Advisory Committee
Notes to Rule 801 quoted above do suggest that admis-
sions are sometimes free from the lay opinion limitations
of Rule 701 and the personal knowledge requirement of
Rule 602. However, the rules calling for generous treatment
of party-opponent admissions still do not stand for the
proposition that Rule 801(d)(2) trumps all other Federal
Rules of Evidence. For example, Rule 403 clearly applies
to admissions, and a trial judge can exclude admission
evidence if its probative value is substantially outweighed
by the danger of unfair prejudice. See United States v.
Zizzo, 120 F.3d 1338, 1351-52 (7th Cir. 1997). Also, al-
though sequence of adoption is not dispositive, we note
that Rule 701(c) was adopted well after the Advisory
Committee Notes to Rule 801(d)(2) contemplating freedom
from “the opinion rule.” See Fed. R. Evid. 701 advisory
committee note, 2000 Amendments (“Rule 701 has been
amended [to include subsection (c)] to eliminate the risk
that the reliability requirements set forth in Rule 702 will
be evaded through the simple expedient of proffering an
expert in lay witness clothing.”). The plaintiff has made
no argument why admissions should always be free from
the requirements of Rule 701(c), Rule 702 and Daubert.
And in this particular case, we see no good reason why
unqualified and unreliable scientific knowledge should
be exempted from the expert evidence rules simply be-
cause the speaker is an employee of a party-opponent.4


4
  Although the need for reliability with respect to scientific
subjects is the dominant consideration here, this might not al-
ways be the case. Sometimes, credibility based on attribution to
the party against whom a statement is used will seem more
persuasive because of its damaging quality than less persuasive
                                                 (continued...)
12                                                     No. 02-1041

Rule 801(d)(2) does not protect Prendergast’s unreliable
scientific testimony from exclusion under Rule 701(c) and
702, and his statements, as offered for the truth of the
matter contained in them (i.e., the existence of a dangerous
“vacuum effect”), were properly excluded.


                                 2.
  Prendergast’s testimony may be inaccurate as a state-
ment of physics, but it could show that the defendant
IC was aware of the risks of passengers standing too close
to moving trains. In this respect, of course, the deposition
testimony would most certainly not be hearsay, since
it would not be offered for the truth of the matter it
contained. Additionally, it may not be excludable under
Rule 701(c) and 702 since it could be accompanied by
a limiting instruction disavowing any reliability of the
underlying scientific proposition. Admission of the dep-
osition testimony thus limited, even if the plaintiff could
not use the statements to assert the existence of a vacuum
effect, or to advance the theory that Joseph was sucked
in by a vacuum, arguably may have helped her show
that the defendants knew the danger of narrow platforms.
  After ruling that the deposition testimony would be
barred for not meeting the requirements of expert testi-
mony, the trial judge went on to note that the plaintiff
might want to introduce the deposition to show “what
the railroad knew and . . . acknowledged . . . to be a known
risk.” Report of Proceedings (Tr.) at 21. Given that this
use of the testimony would not propose “to prove the
truth of the matter asserted” (the hallmark of hearsay),


(...continued)
because of the risk of scientific unreliability. Or justice and equity
may demand attribution to a party and admissibility regard-
less of any Rule 702 considerations.
No. 02-1041                                                 13

the district judge did not believe that Rule 801(d)(2)
was relevant. Id. (“I don’t think that the 801 analysis
really kicks in because what he testifies to here isn’t hear-
say.”). Judging by the trial judge’s statements, however,
it was this limited use of the evidence that he barred un-
der Rule 801(d)(2). Of course, Rule 801(d)(2) is not an inde-
pendent basis for excluding testimony. So, what if we offer
a limiting instruction? We believe that Prendergast’s tes-
timony, cast in the only form in which it would have
been acceptable, may say too little (only that the railroad
knew the danger of narrow platforms). All of the jurors
knew, by common knowledge and through the actual
trial testimony of Prendergast, see, e.g., Tr. at 165, that
the railroad knew narrow platforms to be a safety risk.
Given the collateral nature of this limited basis for intro-
duction of Prendergast’s statements, we believe they might
properly have been excluded under Fed. R. Evid. 403. See
United States v. Harwood, 998 F.2d 91, 97 (2d Cir. 1993)
(holding that hearsay evidence not offered for the truth of
the matter contained can still be excluded for unfair prej-
udice). For the same reasons, any improper exclusion
would have been harmless error.


                              B.
  The district judge barred the introduction of a photo-
graph of the body of the deceased on the ground that its
probative value was substantially outweighed by the dan-
ger of unfair prejudice. Fed. R. Evid. 403. After weighing
the appropriate considerations, he acted within his dis-
cretion. Tr. at 438 (“[T]here has been no reconstructive
testimony as far as based upon the position of the body . . . ,
so the position of the body in that picture doesn’t sup-
port any theory of where the decedent was at the time of
his being struck by the train.”). In weighing the proba-
tive against the prejudicial, the discretion of the district
court is broad.
14                                               No. 02-1041

                              C.
  The plaintiff also appeals certain rulings on jury instruc-
tions: (1) adoption of defendants’ instruction number 11,
stating Joseph’s duty to exercise ordinary care at rail-
road crossings, (2) rejection of plaintiff’s instruction number
3, stating the duty of a common carrier to its passengers,
(3) rejection of plaintiff’s instruction number 4, stating
who is a passenger entitled to an elevated degree of care,
and (4) rejection of plaintiff’s instruction number 5, stating
the duty of a common carrier to exercise an elevated degree
of care in selecting a place for boarding. We consider a
district court’s jury instructions with deference, analyz-
ing them as a whole to determine if they accurately
state the law and do not confuse the jury. Maltby v.
Winston, 36 F.3d 548, 560 (7th Cir. 1994). In this analysis,
we first must determine whether the instructions mis-
state or insufficiently state the law. If the first require-
ment is met, we then determine whether the inadequate
statements confused or misled the jury causing prejudice
to a litigant. Id.
  There is one preliminary matter. Some of the argu-
ments presented by both the plaintiff and the defendants
go to the rules governing the giving of Illinois Pattern Jury
Instructions (IPIs): Illinois Supreme Court Rule 239(a)
dictates that “the IPI instruction shall be used[ ] unless
the court determines that it does not accurately state the
law.” However, the state preference for using IPIs rather
than non-IPI instructions is not to be construed as ad-
vance approval by the Supreme Court of the IPIs. Powers
v. Ill. Cent. Gulf R.R. Co., 438 N.E.2d 152, 157 (Ill. 1982).
IPIs are not law, and there are many circumstances
which justify modifying IPIs or using non-IPI instructions
in place of or in addition to IPIs. See generally Ill. Su-
preme Court Comm. on Jury Instructions in Civil Cases,
Illinois Pattern Jury Instructions, Civil, 2000 ed., 1-5 (sum-
marizing basic principles in the use of IPIs and non-IPI
No. 02-1041                                                     15

instructions). Thus, while we have considered the text
of the IPIs and the comments that accompany them in
Illinois Pattern Jury Instructions, Civil, we will analyze
the instructions’ legal sufficiency in light of actual Illinois
case law.
  One issue of jury instructions questions whether Joseph
Aliotta’s duty of care was overly emphasized. The court
gave a defendant instruction which stated a person’s duty
of care crossing a railroad track, based on Greenwald v.
Baltimore & Ohio Railroad Co., 164 N.E. 142, 144 (Ill.
1928).5 In combination with the plaintiff instruction on
comparative negligence,6 it does appear that Joseph’s duties
were stated twice. However, the jury instructions were not
truly duplicative, since they state distinct legal principles.
Both statements were legally accurate, and the plaintiff
fails to cite any cases or other evidence suggesting that
this degree of overlap is or was prejudicial. We do not
believe it was.
  The rest of the disputed instructions go to the degree
of care owed by the defendants. According to Illinois law,
common carriers such as Amtrak owe the highest degree
of care to “passengers.” See Rotheli v. Chi. Transit Auth.,
130 N.E.2d 172 (Ill. 1955); IPI 100.01. With respect to
the defendant Amtrak’s duty of care, the plaintiff raises


5
   Defendants’ instruction 11: It is the duty of all persons about
to cross a railroad track to look about them and see if there
is danger and to take proper precaution to avoid an accident. It
is generally recognized that railroad tracks are places of dan-
ger and that one crossing tracks must approach them with the
amount of care commensurate with the known danger.
6
  Plaintiff ’s instruction 11: It was the duty of Joseph Aliotta,
before and at the time of the occurrence, to use ordinary care for
his own safety. A person is contributorily negligent if (1) he fails
to use ordinary care for his own safety and (2) his failure to use
such ordinary care is a proximate cause of death. . . .
16                                                     No. 02-1041

three objections. First, the court rejected plaintiff’s in-
struction 3, based on IPI 100.01,7 because not all of the de-
fendants are common carriers, and the passengerhood
of Joseph is in dispute. Second, the court gave the jury,
over the plaintiff’s objection, the “passenger” definition
of IPI 100.09,8 which plaintiff alleges is not accurate in
light of Illinois case law. Third, the court refused to give
an instruction based on IPI 100.15,9 which specifically
states that a common carrier must exercise the highest
degree of care in “selecting a place for [passengers] to
board . . . its vehicles.” We will consider each of these
alleged errors in turn.
  First, we agree with the trial court that giving IPI 100.01
unmodified might have misstated the law and confused
the jury. As the trial court noted, only one of the defen-
dants here is a common carrier, and IPI 100.01 presumes
that the plaintiff is a passenger. Thus, it was appropriate
to modify the instruction. The trial court gave a version



7
   Plaintiff ’s instruction 3: At the time of the occurrence in ques-
tion, the defendant, Amtrak, was a common carrier. A common
carrier is not a guarantor of its passengers’ safety, but it has
a duty to its passengers to use the highest degree of care consis-
tent with the mode of conveyance used and the practical opera-
tion of its business as a common carrier by rail. Its failure to ful-
fill this duty is negligence.
8
  Court’s instruction 2: When I use the word passenger, I mean
a person who with the actual or implied consent of the carrier is
in the act of boarding the conveyance of a common carrier.
9
   Plaintiff ’s instruction 5: In selecting a place for Joseph Aliotta
to board its vehicles, it was the duty of the defendant, Amtrak,
as a common carrier, to exercise the highest degree of care con-
sistent with the mode of conveyance used and the practical
operation of its business as a common carrier by rail. The failure
of the defendant to fulfill this duty is negligence.
No. 02-1041                                                   17

of the instruction modified in three ways.10 First, the
court informed the jury of the degree of care owed by
Amtrak in the alternative that they do not find Joseph
Aliotta to have been a passenger. Second, it distinguished
Amtrak from the other defendants, which are not com-
mon carriers. These two modifications, while somewhat
verbose, we believe to be accurate and adequately clear
statements of the law. Third, the trial court limited the
common carrier’s presumably elevated duty to a duty “with
regard to the operation of the train.” This modification is
closely tied to the other jury instructions issues, and we
discuss it below.
   The remaining jury instruction issues, which define the
circumstances under which common carriers owe an ele-
vated duty of care, are somewhat intertwined. The premier
Illinois case dealing with the definition of “passenger,” or
otherwise stated, the class of person to whom common
carriers owe the highest degree of care, is Katamay v.
Chicago Transit Authority, 289 N.E.2d 623 (Ill. 1972).
Eleanora Katamay, who was trying to board a Chicago
Transit Authority (CTA) train that was in the station (at
what is now the Western stop on the Blue Line), caught
her heel between the planks of the platform, causing her


10
  Defendants’ instruction 3: At the time of the occurrence in
question, the defendant, Amtrak, was a common carrier. A com-
mon carrier is not a guarantor of its passengers’ safety, but
with regard to the operation of the train, it has a duty to its
passengers to use the highest degree of care consistent with the
mode of conveyance used and the practical operation of its
business as a common carrier by rail. Its failure to fulfill this
duty is negligence. In all other respects (including the operation
of the train if you find that Mr. Aliotta was not a passenger), it
was the duty of the defendants Amtrak and Mr. Gilmer, before
and at the time of the occurrence, to use ordinary care for the
safety of the plaintiff. That means it was the duty of the defen-
dants to be free from negligence.
18                                                   No. 02-1041

to fall. It was disputed whether Katamay was even in
contact with the train after she fell. She testified at trial
that her head was in the doorway, but others, including
her own witness, testified that her head was a couple of
feet from the train. Katamay v. Chi. Transit Auth., 273
N.E.2d 510, 512 (Ill. App. 1971). After a jury ruled for
Katamay, an Illinois appellate court held that she was
not a passenger as a matter of law.11 The Supreme Court
of Illinois, after a lengthy analysis, overturned the appel-
late court and held that there was sufficient evidence
for the jury to conclude that she was a passenger, under
the IPI 100.09 definition, even if she was not in contact
with the train. Despite the fact that she was only poten-
tially in contact with the train, and her injury was not
caused by the train or its motion, Katamay was owed the
highest degree of care because she was “in the act of board-
ing.”
  The plaintiff’s suggested jury instruction modified IPI
100.09 to include as passengers not only those who are “in


11
   In Illinois, whether an individual is a passenger of a carrier
is, given uncontroverted facts, a question of law. Skelton v. Chi.
Transit Auth., 573 N.E.2d 1315, 1328 (Ill. App. 1991). While the
allocation of issues between court and jury is a matter of forum
law, cf. Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525
(1958) (holding that, in diversity suits, state law should rarely
intervene in the federal procedural question of allocation of issues
between judge and jury), overruled on other grounds, Hanna
v. Plumer, 380 U.S. 460 (1965); Mayer v. Gary Partners & Co.,
29 F.3d 330, 333 (7th Cir. 1994) (holding that “who decides an
issue is a procedural question” governed by forum law), we are
not certain that we understand the basis of the trial judge’s
conclusion that there was a question of fact here which made
the determination of Joseph’s “passenger” status a jury question.
Our conclusion is that there is an open factual question as
to whether Joseph was acting with the “actual or implied consent”
of Amtrak, making a jury determination appropriate. Neither
party appeals the allocation of this question to the jury.
No. 02-1041                                                19

the act of boarding” but all persons “standing on the
platform . . . with intent to board,” and the plaintiff asks
us to find that IPI 100.09, unmodified, was an inadequate
statement of the law. As Katamay itself implements
IPI 100.09 and the comments to IPI 100.09 in Illinois
Pattern Jury Instructions, Civil, cite Katamay, the plain-
tiff has a rather heavy burden in attempting to demon-
strate that Katamay suggests that IPI 100.09 should not
have been used in this case. Nevertheless, we believe
that the jury was misled without the gloss of Katamay and
other cases on the IPI. That is, while the IPI may suffice
in most cases to distinguish between passengers and non-
passengers (as defined by case law), Katamay substan-
tially broadened the class of persons entitled to a high
degree of care in a way that the IPI does not and the
district court instruction did not capture.
   Rather than granting undue deference to the wording
of the IPI, we believe that a clearer understanding of
Illinois law can be gathered from reading Katamay care-
fully. The authorities cited by the Illinois Supreme Court
in reaching its holding in Katamay strongly suggest that
someone in Joseph Aliotta’s position (standing on the plat-
form with intent to board) would be considered a passen-
ger according to Illinois law. “[T]he rationale for the im-
position of the duty upon a carrier to exercise the highest
degree of care . . . while [a person] is a passenger as distin-
guished from the lesser duty owed at all other times is
that the degree of care should be commensurate with the
danger to which the passenger is subjected.” Katamay,
289 N.E.2d at 625, citing Sims v. Chi. Transit Auth., 122
N.E.2d 221 (Ill. 1954). The Katamay court cites with
approval Lake Street Elevated Railroad Co. v. Burgess, 66
N.E. 215 (Ill. 1903), where a passenger fell from a platform
onto the track below due to the absence of a protective gate.
Lake Street in turn, the Katamay court noted, relied on a
passage from Chicago & Eastern Illinois Railroad Co. v.
20                                                   No. 02-1041

Jennings, 60 N.E. 818, 820-21 (Ill. 1901), a case which held
that a man on his way to the station is not a passenger:
     “It is not necessary, to create the relation, that the
     passenger should have entered a train, but if he is at
     the place provided for passengers, such as the waiting
     room or platform at the station, with the intention of
     taking passage and has a ticket, he is entitled to all the
     rights and privileges of a passenger. . . . Whenever a
     person goes into such a place with the intention of
     taking passage, he may fairly expect that the company
     will understand that he is a passenger and protect
     him.”12
  Also according to Katamay, the duty owed to passen-
gers extends beyond the time the passenger is on the
vehicle. “ ‘The relation of carrier and passenger does not
terminate until the passenger has alighted from the train
and left the place where passengers are discharged.’ ”
Katamay, 289 N.E.2d at 625 (quoting Chi. Terminal Trans-
fer R.R. Co. v. Schmelling, 64 N.E. 714 (Ill. 1902)). “ ‘[T]he
[railroad] is . . . bound to furnish [the passenger] an
opportunity safely to alight from the train. . . . In the
case at bar, when the [passenger] was injured, he was
still upon and within the narrow space between the rail-
road tracks, which was the only place which the [rail-
road] had provided for him to stand upon when he alighted
from the train.’ ” Katamay, 289 N.E.2d at 625 (quoting
Pa. Co. v. McCaffrey, 50 N.E. 713, 714 (Ill. 1898)). If the
elevated duty extends to the space the carrier provides for
the passenger to alight, logic dictates that the duty also
exist for the space where a passenger must stand in prep-
aration for boarding.



12
  The reach of Jennings may have been somewhat limited by
Davis v. South Side Elevated Railroad Co., 127 N.E. 66 (Ill. 1920),
though the Katamay court makes no mention of it.
No. 02-1041                                                21

  The principal case limiting the duty of care owed by
railroads is Davis v. South Side Elevated Railroad Co., 127
N.E. 66 (Ill. 1920), where Louise Davis (at what must
now be the 35th St.-Bronzeville-IIT stop on the Green
Line) slipped on a banana peel and fell down a set of
stairs. A close reading of Davis, however, also supports
the plaintiff’s and not the defendants’ position.
    “ ‘There is really no valid reason why a railroad com-
    pany should be held to a higher degree of care in
    maintaining its station buildings . . . .’ ‘A railroad
    company is held to the highest degree of care in respect
    to the condition and management of its engines and
    cars, because negligence in that respect involves
    extreme peril to passengers, against which they cannot
    protect themselves.’ ”
Davis, 127 N.E. at 67 (quoting 4 Elliott on Railroads, 2nd
ed., § 1590 and Moreland v. Boston & Providence R.R.
Corp., 6 N.E. 225, 227 (Mass. 1886)).
    “[I]n all [the cases enforcing the highest degree of care,]
    it is clear that the accidents happened in boarding or
    alighting from trains or in the course of their moving,
    and the reason for the highest degree of care in those
    cases was fully as great as if the passenger were on the
    moving train . . . . [T]he same degree of care is not
    required as to the stations and approaches to and from
    them, because the danger incurred in such surround-
    ings is not the same as it is on moving trains.”
Davis, 127 N.E. at 68 (emphasis added). At least when they
are victims of accidents which involve the trains them-
selves, persons who are on the platform with intent to board
a train are passengers, according to the above pronounce-
ments of Illinois law.
  What distinguishes Joseph Aliotta’s case from the many
cases cited in Katamay is that most of those involved
passengers getting off trains or about to board trains that
22                                               No. 02-1041

had already pulled into the station and stopped. The
problem here, of course, was precisely that the train did
not stop. There is at least one Illinois case in which a train
failed to stop, Skelton v. Chicago Transit Authority, 573
N.E.2d 1315 (Ill. App. 1991). Joseph Skelton was waiting
for a CTA train at a station (what is now the Oak Park
stop on the Blue Line) late at night, when a train passed
without stopping. Frustrated, he attempted to flag down
the next train, which was not slowing down to stop, and
fell onto the tracks. The accident resulted in the amputa-
tion of his arm. The facts in that case are similar to those
in the present one not only because both Josephs were
unable to buy a ticket beforehand (the CTA station
was unstaffed and a sign instructed riders to buy their
ticket on board, just as we are led to believe the Amtrak
station was unstaffed), but also because neither Joseph had
a meaningful opportunity to try to board his respective
train. The Illinois Appellate Court noted in Skelton that
“Illinois courts have long held that a contractual relation-
ship between passenger and carrier begins when the
passenger has presented himself at the proper place to be
transported with the intention of becoming a passenger
and is then either expressly or impliedly accepted by the
carrier for transportation.” Id. at 1328. The fact that
the train would not and did not stop, and therefore, that
the act of becoming a passenger—if that is what it was—
could not be “completed” does not seem determinative of
anything. “Passengers” waiting on platforms for one
train are frequently passed by other trains traveling at
high speeds (which they obviously cannot board). There
is no good reason why this change in the identity of the
danger-laden vehicle should alter their status.
  Further, we do not believe that the fact that Joseph
Aliotta was at the station at a time when no train was
scheduled to stop is dispositive here, since the appropri-
ateness of Joseph’s expectations can be determined by
No. 02-1041                                             23

the jury when it decides whether there was “actual or
implied consent of the carrier” (a requirement common
to IPI 100.09, the plaintiff’s modified instruction and
the holding in Skelton) to stand on the platform in prep-
aration for boarding a train. Here the station was likely
unstaffed and there was no schedule posted. Joseph had
called the night before for the schedule, which information
he interpreted in light of his many years of familiarity
with the local train service. At, say, an abandoned sta-
tion with no service at all, Amtrak perhaps should not
be expected to account for the safety of those individuals
who have no reason to expect a train to come and stop for
them. Given the facts at hand, however, we believe that
there is an open factual question as to the “actual or
implied consent” of the railroad. In all other respects, we
believe that Joseph met the Illinois legal definition of
“passenger.” The jury instruction submitted by the plain-
tiff was an appropriate one under these particular cir-
cumstances, and IPI 100.09 was an inadequate statement
of the law.
  The court also refused to give IPI 100.15, regarding the
duty of common carriers to select safe boarding places,
based on the defendants’ argument that IPI 100.15 does
not apply to trains, whose stations are in fixed places,
but rather applies only to conveyances, such as taxis or
streetcars, on which the operator has discretion where to
discharge or pick up a passenger. The defendants cite
Davis, which states that a railroad does not have an
elevated duty of care with regard to maintenance of its
stations. However, as we noted above, Davis does not
govern accidents which involve the motion of the train, but
speaks more to those possible conditions of a station fa-
cility that are no different and no more dangerous than
similar conditions in any other public space (e.g., a ba-
nana peel on a staircase). The defendants also note, ac-
curately, that all of the cases cited under IPI 100.15
24                                                No. 02-1041

deal with buses or taxis, and not trains. See IPI 100.15
cmt. The defendants fail, however, to cite any cases hold-
ing that the IPI does not apply to trains. On the contrary,
we have found substantial case law indicating that IPI
100.15 would have been appropriate here. For one, it
appears that IPI 100.15 was given in Katamay. “Over
objection of the defendant the trial court instructed the jury
that the defendant was a common carrier and that, in
selecting a place for the plaintiff to board its train, defen-
dant was to exercise the highest degree of care as to
plaintiff’s safety.” Katamay, 273 N.E.2d at 512. The
appellate court, although ruling that the trial court should
have entered a judgment notwithstanding the verdict on the
ground that Katamay was not a passenger as a matter
of law, made no ruling finding error in the giving of this
jury instruction. Also, Illinois cases agree that trains
must provide passengers a safe place to disembark. “ ‘It
was the duty of [the railroad] to provide a safe means of
access to and from the station . . . and the [passenger] had
a right to assume that the place adopted for discharging
its passengers . . . was safe.’ ” Davis, 127 N.E. at 68 (quoting
Chi. Terminal Transfer R.R. Co., 64 N.E. at 717 (holding
that the railroad betrayed its duty of care by providing no
platform, but only a patch of “stone and sand, not wider
than four, five or six feet, located between the tracks of two
railroad companies,” at a regular stopping place and ap-
proving a “safe place to board and alight” jury instruction)).
See also Chi. & Alton R.R. Co. v. Wilson, 63 Ill. 167, 171
(1872) (calling the railroad company “guilty of reckless and
wanton carelessness” for constructing a narrow island plat-
form similar to the one in Gilman and describing it as
almost “a first-class man trap”). As to the design elements
of stations or platforms that make passengers vulnerable to
accidents involving the operation or movement of the trains,
common carriers by rail owe passengers the highest degree
of care. We believe that IPI 100.15 would have been ap-
No. 02-1041                                               25

propriate here, and that it was error for the trial judge not
to give it.
  Going back to the first jury instruction regarding Am-
trak’s duty of care discussed above, in light of the ap-
plicability of IPI 100.15, we also believe that IPI 100.01
was modified too restrictively in stating that Amtrak owes
a highest degree of care to passengers only “with regard
to the operation of the train.”
  The jury instructions here, in light of Illinois law, were
inaccurate and misleading. Additionally, we must deter-
mine whether the faulty instructions confused or misled
the jury. The central issue debated here is what degree of
care Amtrak owed to Joseph Aliotta. Under the instruc-
tions given by the court, the jury had little recourse
other than to find that Joseph was not a passenger, since
he was not, under most reasonable interpretations, “in
the act of boarding.” According to our reading of Illinois
law, the class of individuals to whom common carriers
by rail owe the highest degree of care is more expansive,
and includes those individuals who, with the actual or
implied consent of the carrier, are standing on a plat-
form in preparation for boarding a train. Because it is
possible, even probable, that the jury would have consid-
ered Joseph to be within this greater class of individuals,
requiring them to assess negligence under a more strin-
gent standard, we believe that the jury was confused and
misled. Taking into account an elevated duty of care, the
jury quite possibly might have come out the other way.
As they touched upon such core issues in the trial, the
jury instructions caused unfair prejudice to the plaintiff,
thereby justifying the granting of plaintiff’s Motion for
a New Trial.
26                                          No. 02-1041

                          III.
  For the reasons given above, the judgment of the dis-
trict court is REVERSED and the case is REMANDED for
further proceedings not inconsistent with this opinion.

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




                  USCA-02-C-0072—1-3-03
