Benjamin v. Atchison, Topeka & Santa Fe Ry. Co.

• Decision Date: 18 February 1992
• Docket Number: No. 3-91-0226,3-91-0226
• Citation: 588 N.E.2d 378,225 Ill.App.3d 608
• Parties: , 167 Ill.Dec. 737 Cheryl BENJAMIN, Individually and as Administrator of the Estate of Russell Benjamin, Deceased, Plaintiff-Appellant, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, and Kenneth Perkins, Sr., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 378

588 N.E.2d 378

225 Ill.App.3d 608, 167 Ill.Dec. 737

Cheryl BENJAMIN, Individually and as Administrator of the Estate of Russell Benjamin, Deceased, Plaintiff-Appellant, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, and Kenneth Perkins, Sr., Defendants-Appellees.

No. 3-91-0226.

Appellate Court of Illinois Third District.

Feb. 18, 1992.

David V. Dorris, Thomas M. Harris (argued), Jerome Mirza & Associates, Bloomington, for Cheryl Benjamin.

Karen L. Kendall (argued), Stephen J. Heine, Robert V. Dewey, Jr., Heyl, Royster, Voelker & Allen, Peoria, for Atchison, Topeka & Santa Fe.

John W. Robertson (argued), Robert C. Stoerzbach, Barash, Stoerzbach & Henson, Galesburg, for Kenneth Perkins, Sr.

Justice GORMAN delivered the opinion of the court:

This is a wrongful death case arising from a collision between a van and a stationary train. The van was subsequently struck by another train, which was on an adjacent track. The defendants were granted summary judgment. We affirm.

On December 14, 1985, Russell Benjamin, was killed when his van collided with a train in Galesburg. He was driving in a northerly direction on his way home from a tavern at about 2:00 a.m. Intersecting the road was the railroad crossing of defendant, Atchison, Topeka & Santa Fe Railway Co. (Santa Fe). The crossing consisted of five sets of tracks, including two mainlines running east-west. The crossing was marked with a sign, red flashing lights, warning bells and a gate or arm which lowered automatically when a train approached.

On December 13, between 6:30 and 7:00 p.m., defendant Kenneth F. Perkins, Sr. was driving his tractor-trailer truck through the crossing. As he was doing so, an approaching train activated the signals, causing the gate to lower. The south gate caught on Perkins' trailer and broke off of its mountings. Perkins made no report of the severed crossing arm.

The following morning, Santa Fe stopped a westbound freight train on the north mainline of the crossing. With the position that the train was stopped, an empty flat car blocked the intersection. Approaching from the west was another Santa Fe train, traveling east on the south mainline. Although the south crossing gate was not working, the flashing red signals, warning bells and north gate were in operation. The night was clear and the road was dry.

At that point, Russell Benjamin attempted to cross the tracks, near or across the center line of the road. He struck the stationary train with enough force so as to wedge his van under the flat car. The engineer of the eastbound train saw the van stopped on the tracks and applied his emergency brake, but was unable to stop before striking the van. There is no evidence indicating which collision killed Mr. Benjamin.

Cheryl Benjamin, as administrator of the estate, filed a wrongful death action against the two defendants. She charged Santa Fe with negligence in the operation of its trains, failing to maintain the crossing, and failing to warn and protect motorists. She charged Perkins with negligence in the operation of his truck, failing to notify the railroad or any other agency of the broken crossing gate, and failing to warn motorists of the dangerous condition.

After extensive discovery, both defendants moved for summary judgment, arguing that a train stopped at a crossing is adequate notice of its presence and that there is no duty to provide additional warnings.

The trial court, relying on Dunn v. Baltimore & Ohio R.R. Co. (1989), 127 Ill.2d 350, 130 Ill.Dec. 409, 537 N.E.2d 738, granted Santa Fe's motion. The court further found that Perkins owed no duty to plaintiff's decedent and granted Perkins' motion. Plaintiff now appeals.

Plaintiff first argues that Dunn does not apply because there is another line of cases more on point.

In Dunn, the Supreme Court reaffirmed the so-called "standing-car" rule. This rule first appeared in Gage v. Boston & M. R.R. Co. (1913), 77 N.H. 289, 90 A. 855, was first applied in Illinois in Coleman v. Chicago, B. & Q. R.R. Co. (1936), 287 Ill.App. 483, 5 N.E.2d 103, and is still the law in most states. (Trevino v. Union Pac. R.R. Co. (7th Cir.1990), 916 F.2d 1230.)

This doctrine provides that a train stopped at a crossing is held to be adequate notice and warning of its presence to any traveler who is in the exercise of ordinary care for his own safety, and the railroad is under no duty to provide additional signs, signals or warnings. (Dunn, 127 Ill.2d at 357, 130 Ill.Dec. at 412, 537 N.E.2d at 741.)

While acknowledging that rule, plaintiff contends that it applies only to situations where there was an absence of any warning device. She argues that there is another line of cases which deal with nonfunctioning signals, i.e. where the railroad has already undertaken a duty to warn but negligently performed that duty. Plaintiff's argument is that the decedent, who was familiar with the crossing, relied on the absence of the gate as an affirmative indication that it was safe to proceed.

The two cases upon which plaintiff relies heavily are Humbert v. Lowden (1944), 385 Ill. 437, 53 N.E.2d 418, and Langston v. Chicago & NW Ry. Co. (1947), 398 Ill. 248, 75 N.E.2d 363.

In Humbert, a car was struck by a moving train. The crossing was protected by a bell and gates, both of which were manually operated by a flagman. At the time of the accident, the gate had not been lowered. The only question before the Supreme Court was whether, as a matter of law, decedent was contributorily negligent. The court held that under the facts, that was a question for the jury, which had decided in favor of plaintiff. The opinion states that when a railroad undertakes the duty of warning, a traveler has a right to presume that the gates will be operated properly.

In Langston, the tracks crossed Belvidere Road and ran parallel to Skokie Highway. The tracks crossed Belvidere about 75 feet from the intersection of Belvidere and Skokie. The lights controlling the intersection were synchronized with the crossing lights so that when a train was approaching, traffic on Belvidere had a red light at the intersection in addition to the flashing red signal at the crossing. On the night of the accident, the decedent's car was faced with a green light at the intersection and no flashing lights at the track. Due to a heavy fog, he could not yet see the train. Based on these indications, decedent crossed the tracks and was struck by a train. The issue before the court was whether the failure of the railroad crossing signals to indicate danger, while the device to the west of the crossing indicated safety, constituted negligence. The court held that the existence of the green light constituted an affirmative invitation to cross the tracks. Since the railroad had undertaken a duty to warn, it was negligent for not properly maintaining the signal.

These cases cannot properly be categorized as distinct from Dunn. Humbert and Langston are more accurately classified as falling into the special circumstances exception to the standing train rule. Indeed, the Dunn court cited Langston as an example of special circumstances.. Dunn, 127 Ill.2d at 357, 130 Ill.Dec. at 412, 537 N.E.2d at 741.

In both Humbert and Langston, the railroad had chosen a method of warning which then failed to operate. Here, Santa Fe chose several methods of warning, only one of which didn't work. At the time of the accident, the flashing lights and bells were in full operation. Viewing that fact in conjunction with the presence of the stopped train, it cannot be said that decedent was falsely induced into thinking it was safe to cross the tracks. "[I]t is erroneous to conclude ... that because additional warnings could have prevented the collision, the railroad had a duty to provide additional warnings." Dunn, 127 Ill.2d at 365, 130 Ill.Dec. at 415, 537 N.E.2d at 744.

Plaintiff argues that even if the standing-car rule applies, special circumstances existed. She cites the following facts as evidence of special circumstances: 1) it was dark and the crossing was unlit; 2) the flat car was non-reflective and had a low profile so as to not constitute much of a visual impediment; 3) the decedent would have been able to see the lights from businesses across the track; 4) decedent would have been able to see the flashing signals on both sides of the track; 5) the gate was nonfunctional; and 6) another train was approaching which could have accounted for the activated flashing lights.

There is no fixed rule as to what constitutes special circumstances. (Dunn, 127 Ill.2d at 357, 130 Ill.Dec. at 412, 537 N.E.2d at 741.) Poor visibility and darkness alone do not constitute special circumstances. Bachman v. Illinois Central R.R. Co. (1971), 132 Ill.App.2d 277, 268 N.E.2d 42.

In Dunn, plaintiff also argued that special circumstances existed, including darkness, the absence of lighting at the crossing, and unnecessary distractions in the vicinity of the crossing. (127 Ill.2d at 359, 130 Ill.Dec. at 413, 537 N.E.2d at 742.) Plaintiff there, as here, argued that perceptibility plays an important role, relying on Petricek v. Elgin, J. & E. Ry. Co. (1959), 21 Ill.App.2d 60, 157 N.E.2d 421. However, as the Dunn court noted, Petricek specifically held that "one cannot recover for driving his automobile into a train standing across a crossing, except under extraordinary or unusual circumstances." Dunn, 127 Ill.2d at 358, 130 Ill.Dec. at 412, 537 N.E.2d at 741.

Two recent federal appellate cases have also examined Illinois' standing-car rule in the wake of Dunn. (Pearman v. Norfolk & Western Ry. Co. (7th Cir.1991), 939 F.2d 521; Trevino v. Union Pac. R.R. Co. (7th Cir.1990), 916 F.2d 1230.)

First, in Trevino, the Seventh Circuit addressed the issue in a case in which a automobile struck a standing flat-car at an abandoned crossing. The track at that point had not been used for over a decade and was overgrown with weeds. To one side of the...