Barthel v. Illinois Cent. Gulf R. Co.

• Decision Date: 22 December 1977
• Docket Number: No. 13945,13945
• Parties: , 13 Ill.Dec. 594 David BARTHEL, Scott West, Herbert Rigney, Helen Hammond, Administrator of the Estate of John M. Wallace, Deceased, and Katherine L. Robinson, Administrator of the Estate of Frank J. Robinson, III, Deceased, Plaintiffs-Appellants, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 311

371 N.E.2d 311

55 Ill.App.3d 816, 13 Ill.Dec. 594

David BARTHEL, Scott West, Herbert Rigney, Helen Hammond, Administrator of the Estate of John M. Wallace, Deceased, and Katherine L. Robinson, Administrator of the Estate of Frank J. Robinson, III, Deceased, Plaintiffs-Appellants, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellee.

No. 13945.

Appellate Court of Illinois, Fourth District.

Dec. 22, 1977.

Rehearing and Certificate of Importance Denied Jan. 31, 1978.

Thomas F. Londrigan, Roger E. Ryan, Londrigan & Potter, P. C., Springfield, for Barthel and Hammond.

Michael J. Costello, Springfield, for West and Rigney.

Nils A. Olsen, Olsen & Olsen, Springfield, for Robinson.

Gillespie, Cadigan & Gillespie, P. C., Robert E. Gillespie, Springfield, for defendant-appellee.

WEBBER, Justice.

This case arises out of a collision between an automobile and a freight train of the Illinois Central Gulf Railroad Company in the City of Springfield on November 22, 1969, at approximately 3:15 a. m. The automobile was being driven by Robert Crifasi and contained five passengers: John Wallace, David Barthel, Scott West, Herbert Rigney and Frank Robinson. Robert Crifasi, the driver, Frank Robinson and John Wallace, passengers, were killed in the accident. The other passengers suffered injuries.

A variety of lawsuits ensued. Crifasi's administrator sued the railroad. The surviving passengers and the administrators of the two deceased passengers sued the railroad and Crifasi's administrator. All suits were consolidated for trial. For convenience and clarity in this opinion, the surviving passengers and the administrators of the deceased passengers will be referred to as "plaintiffs" and the defendant Illinois Central Gulf Railroad Company as "defendant."

A two-week jury trial was had and the jury returned verdicts in favor of plaintiffs and against driver-Crifasi's administrator in varying amounts. These verdicts are not in question in this appeal. The jury likewise returned a verdict in favor of defendant and against Crifasi's administrator and this verdict is not in question here.

What is in question here is the action of the trial court in dismissing before trial certain additional counts in their complaints brought by plaintiffs against defendant. These counts were based on section 73 of the Public Utilities Act (Ill.Rev.Stat.1969, ch. 1112/3, par. 77) and were filed shortly before trial. Other counts in the complaints sounded in ordinary negligence and wilful and wanton misconduct.

Section 73 reads as follows:

"In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, such public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment."

Plaintiffs elected to stand on their amendments and the question has been properly preserved for review. The trial proceeded on negligence and wilful and wanton theories only with the results described above. In addition to those verdicts (not in issue here) the jury returned a verdict in favor of defendant and against plaintiffs on their negligence and wilful and wanton counts. According to the prayer in plaintiffs' brief, they do not seek a new trial on these counts.

The sole issue, then, before this court is the propriety of the trial court's action in striking the counts based on section 73. Plaintiffs have raised several other issues which we shall discuss briefly later on, but we believe that the view we take on this principal issue will be dispositive of them.

The trial court's fundamental reason for dismissing the section 73 counts was the absence of any allegation of due care or freedom from contributory wilful and wanton misconduct on the part of the plaintiffs. Plaintiffs' contention is that such an allegation is unnecessary since section 73 creates a statutory liability distinct from the common law and free from common law defenses.

The precise point has not been passed upon by the Illinois courts so far as we have been able to determine. Two Illinois cases have dealt indirectly with the proposition and one Federal case has met it head-on.

Milford Canning Co. v. C.I.P.S. Co. (1963), 39 Ill.App.2d 258, 188 N.E.2d 397, turned on the question of a jury instruction. Plaintiff had sued in one count on section 73 and the court gave what the appellate court called a "peremptory" instruction which in effect directed a verdict for the plaintiff if plaintiff proved a statutory violation which resulted in damage. The appellate court reversed, saying:

"(T)he instruction in question completely omits the requirement of proving due care, negligence and proximate cause and constitutes a complete departure from the allegations of plaintiff's complaint and the theory upon which the case was tried." (Emphasis added.) 39 Ill.App.2d 258, 265, 188 N.E.2d 397, 400-01.

It is thus apparent that in Milford, unlike the instant case, due care was alleged by the plaintiff and the Milford court was not dealing with an absence of allegation but a failure of the instruction to follow the pleadings and the proof. However, the court did assume that such allegations were proper; it said that plaintiff's "due care" was an "essential element," but was not called upon to decide the matter directly.

In Churchill v. Norfolk & Western Railway Company (1977), 46 Ill.App.3d 781, 5 Ill.Dec. 885, 362 N.E.2d 356, this court was called upon to adjudicate an injury case based in part on section 73. As in Milford, the question of plaintiff's due care and freedom from contributory wilful and wanton misconduct was not directly in issue, but in passing the court commented on it by saying:

"It is nonetheless a jury question to determine the existence or nonexistence of contributory negligence and contributory wilful and wanton conduct on the part of the decedent." 46 Ill.App.3d 781, 791, 5 Ill.Dec. 885, 893, 362 N.E.2d 356, 364.

Churchill turned basically on questions of the standing of the plaintiff and the relationship of compensatory and punitive damages under the Wrongful Death Act vis-a-vis the Public Utilities Act, but as indicated by the quotation above, this court clearly felt that plaintiff's conduct was an issue to be pleaded and proved.

The Federal case is Rucker v. Wabash Railroad Company (7th Cir. 1969) 418 F.2d 146. The remarks of the trial court indicate that he was relying heavily on Rucker in making his ruling. There the question at hand was squarely presented, the court saying:

"Plaintiffs, however, wish us to go further and establish strict liability for violation of the Commission's rules and orders. This we decline to do. Our decision in Lippincott v. Wabash Railroad Co., 295 F.2d 577, 580 (7th Cir. 1961), expressly eschewed the notion that this Section (i. e., 73) was intended to make the railroads the 'insurers as to all persons injured at railroad crossings where some obstruction to the view may exist on the right of way within 500 feet of a crossing.' "

We are aware of the rules governing the interpretation of Illinois law by a Federal court; notwithstanding, we find the rationale of Rucker persuasive.

This court held in Churchill that the right of action given under section 73 "is by its clear and unambiguous language an independent cause of action * * * . It is a free-standing, independent cause of action that could properly be asserted by the plaintiff in this case." 46 Ill.App.3d 781, 789, 5 Ill.Dec. 885, 892, 362 N.E.2d 356, 363.

The rule in Illinois is that statutes in derogation of the common law are to be strictly construed. In Summers v. Summers (1968), 40 Ill.2d 338, 239 N.E.2d 795, the supreme court was called upon to construe the Illinois guest statute, specifically as to whether an "owner-occupant" was a "guest" within the meaning of the statute. At page 342, 239 N.E.2d at page 798, the court said:

"It is evident that our guest statute, originally enacted in 1931, is in derogation of pre-existing common law in that it places a limitation on the common-law rights of recovery. It is equally evident that this statute in its present form does not expressly apply to an owner-occupant of an automobile being driven by another; therefore, in absence of a finding of legislative intent to the contrary, our rule of construction requires the holding that an owner-occupant is not subject to the limitations of the guest statute." 40 Ill.2d 338, 342-43, 329 N.E.2d 795, 798.

Similarly, in Anderson v. Board of Education (1945), 390 Ill. 412, 61 N.E.2d 562, the supreme court construed the Teacher Tenure Law saying:

"A statute creating a new liability...