Dunn v. Baltimore & Ohio R. Co.

• Decision Date: 03 September 1987
• Docket Number: No. 4-86-0740,4-86-0740
• Court: United States Appellate Court of Illinois
• Parties: , 113 Ill.Dec. 868 Arley DUNN and Nada Lou Dunn, as Co-Administrators of the Estate of Lyle E. Dunn, Deceased, Plaintiffs-Appellants, v. The BALTIMORE & OHIO RAILROAD COMPANY, a corporation, Defendant-Appellee.

Page 1027

515 N.E.2d 1027

162 Ill.App.3d 97, 113 Ill.Dec. 868

Arley DUNN and Nada Lou Dunn, as Co-Administrators of the Estate of Lyle E. Dunn, Deceased, Plaintiffs-Appellants, v. The BALTIMORE & OHIO RAILROAD COMPANY, a corporation,

Defendant-Appellee.

No. 4-86-0740.

Appellate Court of Illinois,

Fourth District.

Sept. 3, 1987.

As Modified on Denial of Rehearing

Nov. 19, 1987.

Phebus, Tummelson, Bryan & Knox, Urbana (Joseph R. Phebus of counsel), Johnson, Frank, Frederick & Walsh, Urbana, for plaintiffs-appellants.

James C. Kearns, John D. Flodstrom, Heyl, Royster, Voelker & Allen, Urbana, for defendant-appellee.

OPINION MODIFIED ON DENIAL OF PETITION FOR REHEARING

Presiding Justice SPITZ delivered the opinion of the court:

Plaintiffs Arley Dunn and Nada Lou Dunn (the Dunns) appeal the dismissal with prejudice of their third-amended complaint seeking damages on the basis of alleged negligence and wilful and wanton misconduct on the part of the defendant Baltimore & Ohio Railroad Company (B & O), which they assert caused the death of their son, Lyle E. Dunn (decedent).

The Dunns' third-amended complaint consists of eight counts. Common to all counts are allegations that at about 9:30 p.m. on October 29, 1983, decedent was operating a motor vehicle in a northerly direction across the Smith Street crossing of the B & O tracks in Newman, Illinois. In so doing, decedent's motor vehicle collided with a stopped B & O train which decedent "was unable to see until it was too late to avoid the collision due to one or more of the acts set forth hereinafter or a combination thereof."

Count I, which is a survival action, alleges B & O committed the following wilful and wanton acts which proximately caused decedent's injuries and death, and damage to his property: (1) failed to provide warnings of railcars in the crossing which B & O periodically and intentionally stopped there during hours of darkness, even though it knew (a) the visibility at night was so poor that a motorist might not see the cars until it was too late, (b) the crossing was extra hazardous when railcars were stopped there during hours of darkness, or (c) "that considering the periodic presence of parked cars, the motor vehicular traffic, the absence of lighting at the crossing during hours of darkness, the elevated approach grades of the crossing, and the obstructions to view in various quadrants of the crossing," the crossing was extra hazardous, and (2) failed to provide warning of railcars in the crossing which it periodically and intentionally stopped there even though it knew the crossing was extra hazardous when railcars were stopped there during hours of darkness.

Count II, also a survival action, alleges that B & O engaged in wilful and wanton misconduct in not conforming the Smith Street crossing to various rules promulgated by the Illinois Commerce Commission (ICC). The count specifically alleges that B & O:

"A. Intentionally constructed and maintained for a period of many years prior to the occurrence the crossing in such a manner that the crossing violated Rule 4 of General Order 106 of the Illinois Commerce [Commission] in that the surface of the roadway was not flush and level with the top of the rails between the rails and for a distance of at least 16 inches beyond the outside rail, and the width of the crossing was less than 18 feet measured at right angles to the centerline of the road, all of which was known to the defendant, and which conditions could cause an unnecessary diversion of the attention of a motorist such as plaintiff's decedent to the surface of the roadway thereby reducing his opportunity to look for approaching trains or trains standing on the crossing.

B. Knowingly and intentionally raised the level of the tracks at the crossing with the result that the roadway approaches thereto were changed so as to violate the requirements of Rule 204 as promulgated by Illinois Commerce Commission Order 138 with the result that a motorist such as the plaintiff's decedent would see under the rail car rather than see the rail car and thus be misled to believe that the crossing was unobstructed.

C. For an extended period of time knowingly allowed the right-of-way adjacent to its tracks to become obstructed by brush, shrubbery, weeds and crops within five hundred (500) feet of the crossing in violation of Rule 205 as promulgated by Illinois Commerce Commission General Order 138 with the result that the attention of a motorist such as the plaintiff's decedent was unnecessarily diverted to the areas obscured by said brush, shrubbery, weeds and crops thereby reducing the motorist's opportunity to observe whether or not there were any approaching trains or rail cars stopped upon the track.

D. After it intentionally raised one of the two sets of track at the crossing, knowingly failed to adjust or arrange for adjustment of the roadway approaches so as to conform them as nearly as practicable to Rules 203 and 204 in violation of Rule 207 as promulgated by Illinois Commerce Commission General Order 138 with the result that a motorist such as the plaintiff's decedent would see under the rail car rather than see the rail car and thus be misled to believe that the crossing was unobstructed.

E. Knowingly allowed the crossing to become and remain for an extended period of time so rough and uneven that a motorist's attention was unnecessarily diverted to the surface of the roadway thereby reducing the motorist's opportunity to look for approaching trains or rail cars stopped on the crossing in violation of Rule 206 as promulgated by Illinois by Illinois Commerce Commission General Order 138."

Count III, which requests damages on the theory of wrongful death, repeats all the allegations of wilful and wanton misconduct alleged in count I, except it does not allege B & O's failure to provide warning of trains standing at the Smith Street crossing even though it knew that because of the periodic presence of parked cars, the motor vehicular traffic, the absence of lighting, et cetera, the crossing was extra hazardous. Additionally, count III alleges B & O wilfully and wantonly started the train notwithstanding that there were police cars at the Smith Street crossing with their headlights shining on decedent, who was still alive at the time and in plain view of B & O's employees.

Count IV, also a wrongful death action, alleges B & O wilfully and wantonly committed the same violations of ICC rules alleged in count II.

Count V, a survival action, alleges B & O was negligent in that it (1) failed to provide automatic flashers, flares, or a flagman to warn of the presence of stopped railcars in the Smith Street crossing, notwithstanding its periodically stopping railcars on the crossing during hours of darkness, "the vehicular traffic, the lack of lighting at the crossing, the grades and general condition of the crossing, that the crossing was extrahazardous [sic ]"; (2) periodically stopped railcars on the Smith Street crossing during hours of darkness, even though it knew or should have known that it was "difficult for a motorist to see a rail car parked at the crossing during the hours of darkness an adequate distance back from the crossing to safely stop before striking the parked rail car"; and (3) failed to maintain the crossing in such a condition that a motorist's attention would not be unnecessarily diverted and motorists would not be unnecessarily distracted, and "in such a manner that a motorist would not receive the false illusion that a train was not blocking the crossing," with the result that in violation of "Ill.Rev.Stat., ch. 114, Section 62, a motorist could not safely cross the crossing during hours of darkness."

Count VI, also a survival action, alleges that B & O negligently committed the same violations of the ICC rules with respect to the Smith Street crossing stated in count II.

Count VII, a wrongful death action, alleges that B & O was negligent for all the reasons stated in count V. Additionally, it alleges that B & O was negligent in that (1) B & O's train crew failed to give an audible warning of the pending movement of the train with which decedent collided and failed to exercise an adequate lookout prior to starting the train, notwithstanding that decedent was still alive, potential rescuers were at the scene and the crew in the exercise of ordinary care should have known that a collision with the train or some other unusual event had occurred at the Smith Street crossing; (2) the train crew in the caboose failed to exercise an adequate lookout forward prior to starting the train, and (3) it "failed to post a flagman and ignite flares at the rear of the stopped train."

Count VIII, also a wrongful death action, alleges that B & O negligently committed the same violations of ICC rules with respect to the Smith Street crossing alleged in count II.

Before considering the substantive arguments raised on appeal, two preliminary matters need to be addressed. We first consider B & O's motion to strike the Dunns' brief on the basis that it contains references to deposition testimony which is irrelevant for purposes of this appeal and which is so intertwined in the brief that it cannot be easily excised by means of a motion to strike it from the brief. In opposition to this motion, the Dunns point out that B & O's motion to dismiss their second-amended complaint makes reference to a deposition of the Dunns' expert Thomas Berns, and that an affidavit in support of that motion was placed on file. The Dunns further note that none of the motions to dismiss or orders entered by the circuit court in this cause make reference to section 2-615 of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-615). The Dunns also assert that the record demonstrates that the trial court considered more than the allegations of their complaint. For these reasons, the Dunns maintain that the references to...