Brennan v. Wisconsin Cent. Ltd., 2-91-0484

• Decision Date: 23 April 1992
• Docket Number: No. 2-91-0484,2-91-0484
• Citation: 227 Ill.App.3d 1070,591 N.E.2d 494
• Parties: , 169 Ill.Dec. 321 Kathy J. BRENNAN, Plaintiff-Appellant, v. WISCONSIN CENTRAL LIMITED, et al., Defendants-Appellees. Second District
• Court: United States Appellate Court of Illinois

Page 494

591 N.E.2d 494

227 Ill.App.3d 1070, 169 Ill.Dec. 321

Kathy J. BRENNAN, Plaintiff-Appellant, v. WISCONSIN CENTRAL LIMITED, et al., Defendants-Appellees.

No. 2-91-0484.

Appellate Court of Illinois,

Second District.

April 23, 1992.

Stephen M. Passen, Allen C. Schwartz, and Jay Paul Deratany, Stephen M. Passen, Ltd., Chicago, for Kathy J. Brennan.

Oppenheimer, Wolfe & Donnely, James A. Fletcher, and Patrick J. Larkin; and Jenner & Block, Craig C. Martin, Chicago, for Wisconsin Cent. Ltd., David A. Koepke and Ronald G. Calloway.

Justice McLAREN delivered the opinion of the court:

This appeal arises out of a collision between an automobile operated by Kathy J. Brennan, plaintiff, and a freight train owned by Wisconsin Central Limited (WCL), an Illinois corporation, in unincorporated Antioch Township, Illinois. Plaintiff filed a three-count complaint for personal injuries against WCL, its employees David A. Koepke and Ronald G. Callaway, and the North Shore Improvement Association alleging that defendants' negligence was the proximate cause of her injuries. After the close of the evidence, the court granted a directed verdict in favor of defendants on several counts of plaintiff's complaint, and the jury returned a verdict in favor of defendants on all remaining counts. Plaintiff's post-trial motion for a judgment notwithstanding the verdict or alternatively for a new trial was denied, and plaintiff appealed. We affirm in part, reverse in part, and remand.

The collision occurred where WCL's north/south mainline track intersects with Lake Shore Drive in unincorporated Antioch Township. Lake Shore Drive is an east/west two-lane, black-topped road which crosses the track at a 90 degree angle and comes to a dead end within a subdivision east of the crossing. The crossing is equipped with one reflectorized crossbuck on each side of the track and no active warning devices. Approximately 50 feet east of the track, Lake Shore Drive intersects with a gravel road known as L Street, which runs in a northeasterly/southwesterly direction.

The record reveals that on January 9, 1988, at approximately 5:20 p.m., it was dusk, the weather was clear, and there was nearly one foot of snow on the ground. Kathy Brennan was traveling westbound along Lake Shore Drive, and the WCL train was approaching the crossing from the south at approximately 35 miles per hour. As the vehicle approached the crossing, both plaintiff and her passenger, Pamela Kegerris, testified that they looked both ways along the track but did not see or hear anything until they were directly on the track and the headlight of the train was shining through the driver's side window. At this point, train number T41, consisting of 2 locomotives and 65 freight cars, collided with plaintiff's vehicle.

At the time of the accident, the engine was operating in a fashion known as long end forward, meaning that the engineer and conductor were positioned in the rear of the engine which leads the train. David Koepke, the conductor, testified that he first observed Brennan's automobile about a quarter of a mile from the crossing when her car slowed at L Street and turned onto Lake Shore Drive. When Brennan's automobile passed the crossbuck sign, Koepke realized it was not going to stop and directed Callaway, the locomotive engineer, to apply the emergency brake. Both Callaway and Koepke testified that the warning bell and horn were sounded in the required fashion prior to the collision and that the headlight was functioning on its brightest setting.

Plaintiff's complaint alleged several acts of negligence by the various defendants. However, at the close of the evidence, plaintiff was allowed to orally amend her complaint to conform to the evidence. The complaint, as amended, asserted that WCL, Koepke and Callaway were negligent in:

(1) constructing and maintaining the approach to the crossing at an excessive grade;

(2) failing to remove brush, shrubs or trees located on the railroad right-of-way within 500 feet of the Lake Shore Drive grade crossing which materially impaired the view that westbound motorists had of approaching trains;

(3) failing to provide adequate warnings at the Lake Shore Drive crossing such as signs, flashing lights, gates or guards;

(4) failing to stop or apply the brakes in a timely manner;

(5) failing to sound the bell, horn or otherwise give timely warning;

(6) operating the train at a speed greater than was reasonable and proper given the conditions existing at the Lake Shore Drive crossing;

(7) failing to maintain a proper and sufficient lookout;

(8) failing to run [the] engine short end forward; and

(9) failing to operate and manage the train with reasonable care and caution having due regard to the conditions existing at the crossing.

After the close of the evidence, the court granted a directed verdict for Koepke on all of the above-mentioned claims and as to WCL and Callaway on all claims except those based on the alleged failure to sound the horn and to remove trees and brush. After submitting the remaining claims to the jury, a verdict was returned in favor of defendants, and judgment was entered on the verdict. Plaintiff seeks review of the trial court's denial of her post-trial motion for a judgment n.o.v. or, alternatively, for a new trial.

Judgments n.o.v. should be entered or verdicts directed only when all of the evidence, viewed most favorably to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504.) However, reversal of the denial of a motion for a new trial on appeal requires a showing that the trial court abused its discretion. Tedrowe v. Burlington Northern, Inc. (1987), 158 Ill.App.3d 438, 442, 110 Ill.Dec. 621, 511 N.E.2d 798.

I

The first contention in plaintiff's post-trial motion is that the trial court erred in granting defendant's motion in limine which limited proof of WCL's alleged negligence in failing to erect additional warning devices to standards of the Illinois Commerce Commission (ICC). This ruling was based on the trial court's finding that the Federal Railroad Safety Act (FRSA) (45 U.S.C. § 421 et seq. (1986)) expressly preempts State law concerning the adequacy of existing crossing signals. We will first address the court's ruling that plaintiff's common-law claim that WCL was negligent in failing to install additional warning devices at the subject crossing was preempted by Federal law.

The Supreme Court has indicated that there are three circumstances in which the supremacy clause of the United States Constitution preempts State law. First, Congress can explicitly define the extent to which its enactment preempts State law. In this situation, the courts will attempt to narrowly tailor the scope of preemption to match congressional intent. Second, a congressional intent to exclusively occupy a field of regulation may be inferred when the regulatory scheme is so comprehensive that there is no room for supplementary State laws. Third, State law is preempted to the extent that it actually conflicts with Federal law, thereby making compliance with both State and Federal requirements impossible. (English v. General Electric Co. (1990), 496 U.S. 72, 78, 110 S.Ct. 2270 2275, 110 L.Ed.2d 65, 74.) Section 434 of the FRSA is helpful in specifically describing its preemptive effect. It states that the "standards relating to railroad safety shall be nationally uniform to the extent practicable." However, it also contains the following savings clause:

"A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary [of Transportation] has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce." 45 U.S.C. § 434 (1986).

With the adoption of the FRSA, Congress required the Secretary of Transportation to study and develop solutions to problems associated with railroad grade crossings. (45 U.S.C. § 433 (1986).) Under the Highway Safety Act (23 U.S.C. §§ 401 through 404 (1986)), the Secretary is responsible for developing uniform standards and to approve State-designed highway safety programs as a condition precedent to the State's receipt of Federal highway funds. Pursuant to its statutory responsibility, the Secretary of Transportation adopted the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD). (23 C.F.R. §§ 646.214(b)(1), 655.603 (1991).) However, the MUTCD contains the following language which delegates the responsibility for selecting warning devices to local agencies with jurisdiction over a given rail crossing:

"The determination of need and selection of devices at a grade crossing is made by the public agency with jurisdictional authority. Subject to such determination and selection, the design, installation and operation shall be in accordance with the national standards contained herein." (Manual on Uniform Traffic Control Devices for Streets and Highways § 8A-1 (1988).)

It further states:

"Due to the large number of significant variables which must be considered there is no single standard system of active traffic control devices universally applicable for grade crossings. Based on an engineering and traffic investigation, a determination is made whether any active traffic control system is required at a crossing and, if so, what type is appropriate. Before a new or modified grade crossing traffic control system is installed,...