FIRST NAT'L BK. v. ILL. CENTRAL GULF RR

• Decision Date: 14 July 1978
• Docket Number: No. 14549.,14549.
• Citation: 62 Ill. App.3d 36,378 N.E.2d 1329
• Parties: THE FIRST NATIONAL BANK OF NORMAL, Adm'r of the Estate of Kenneth A. Wilson, Deceased, et al., Plaintiffs-Appellees, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

62 Ill. App.3d 36

378 N.E.2d 1329

THE FIRST NATIONAL BANK OF NORMAL, Adm'r of the Estate of Kenneth A. Wilson, Deceased, et al., Plaintiffs-Appellees, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellant.

No. 14549.

Illinois Appellate Court — Fourth District.

Opinion filed July 14, 1978.

Rehearing denied August 10, 1978.

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Woods & Bates, of Lincoln, and Lord, Bissell & Brook, of Chicago (Dick H. Woods, Jr., Charles A. Adamek, and Hugh C. Griffin, of counsel), for appellant.

Jerome Mirza, of Bloomington, for appellees.

Judgment affirmed.

Mr. JUSTICE MILLS delivered the opinion of the court:

Railroad crossing.

Fatality.

Wilful and wanton misconduct.

Jury found for plaintiffs.

Verdict: $402,496.84.

We affirm.

This suit was brought after Kenneth Wilson was killed when his pickup truck was struck by a passenger train at the Elm Street crossing in Atlanta, Illinois. The defendant, Illinois Central Gulf Railroad Company (Illinois Central), was the owner of the right-of-way which constituted the crossing at Elm Street.

Here are the facts.

Elm Street is a paved two-lane road running in a general east-west direction. It is not curved or marked with a center line and is used mainly by local traffic since it extends only three to four blocks on either side of the railroad tracks, terminating at a school on one side of the tracks and a residential area on the other.

The Illinois Central tracks through Atlanta consist of one main track running in a general north-south direction. There are also a few side tracks serving various local businesses and warehouses in the town. The east and west side of the Elm Street crossing are protected by standard black and white cross bucks with the words "Railroad Crossing" printed in large black letters on a white background. Below the cross buck is another sign reading "Tracks" to advise motorists of the presence of a side track 24 feet east of the main line track.

In addition to these warnings, the railroad upgraded the Elm Street crossing in 1964 by mounting a set of electric red flashers on each cross buck pole. These flashers are hooded and designed to shine toward drivers approaching the crossing from either direction on Elm Street. There is an electric warning bell on top of the cross buck pole on the east side of the crossing. The flashers for eastbound traffic are located on the right side of the highway approximately 13 feet west of the main line track.

The railroad emphasizes that an eastbound motorist on Elm Street has an unimpeded view of the tracks to his right (south) all the way to the depot, approximately 500 feet away.

On the day of the accident, Mr. Wilson had dropped his children off at school and was crossing the tracks in an easterly direction enroute to his employer's warehouse in McLean, Illinois. The time was 8:05 a.m. and the sun was rising in the east and shining into the decedent's face. An eyewitness testified that decedent's truck was traveling at normal town driving speed (train engineer estimated 15 miles per hour) and did not slow down at any time before proceeding onto the crossing in front of the northbound Illinois Central train.

It is undisputed that at the time of the collision the two red flashers were operating, warning eastbound traffic on Elm Street of the approaching train.

The Illinois Central train consisted of one 13 1/2-foot-high multicolored diesel engine and three similar sized passenger cars. The train was not scheduled to stop in Atlanta and was traveling approximately 73 or 74 miles per hour. The train whistle or horn was blown at the whistle post 2,820.6 feet south of the crossing and continued to be blown in the standard sequence as the train proceeded toward the Elm Street crossing. In addition, the warning bell on the engine had been turned on at the whistle post and both the headlights and the oscillating Mars light were on.

As the train entered Atlanta, the engineer and fireman were sitting in the engine room. When the train passed the depot approximately 500 feet south of the Elm Street crossing, the engineer and the fireman both saw decedent's truck at the intersection of 1st and Elm and the fireman thought that it was turning. When the truck continued east on Elm Street without slowing down or stopping, the engineer started a series of short whistle blasts and threw the train into an emergency stop. The collision occurred at the Elm Street crossing and carried decedent's truck 100-200 yards further north.

Decedent's administrator's wrongful death suit was premised upon four counts. Counts 1 and 2 alleged that the railroad was negligent, whereas counts 3 and 4 were based upon the alleged wilful and wanton conduct of the defendant. At the close of plaintiffs' evidence, the trial court granted Illinois Central directed verdicts on the negligence counts (counts 1 and 2). The record does not indicate what the trial court's basis for dismissal was although the trial judge had told counsel that he was concerned with decedent's due care for his own safety.

The trial court denied defendant's motion for a directed verdict on counts 3 and 4 of the complaint and the jury ultimately found that the railroad had acted in a wilful and wanton manner and assessed damages totalling $402,496.84.

On appeal the railroad raises numerous issues concerning the sufficiency of the evidence, the trial court's evidentiary rulings, and the trial court's ruling on various jury instructions. We will grapple with them in what we hope are logical groupings.

EVIDENTIARY

First, the IC argues that the directed verdicts in its favor on the negligence counts are the equivalent of a ruling by the trial court that the crossing protection was reasonable and adequate and, therefore, the railroad could not have been guilty of wilful and wanton conduct. Defendant cites no authority for this proposition and we do not believe it is a valid assertion.

The trial court neither delineated its reasoning nor entered specific findings in support of the directed verdicts, but merely stated that plaintiffs had not proved their allegations in counts 1 and 2. After viewing the evidence, we are confident that the trial court found the decedent guilty of contributory negligence as a matter of law. In spite of the fact that decedent's contributory negligence was implicit in the trial court's ruling, it was not necessary to the directed verdict to find that the railroad had in fact provided a safe railroad crossing and given reasonable warning to the decedent.

• 1 The trial court may well have decided that decedent's conduct was negligent without finding that the crossing itself was adequate. For instance, even had there been no flashing lights or warning signals at the crossing the court still could have found contributory negligence by decedent's failure to see the train or heed the numerous warning whistles given by the train. Thus, the finding of contributory negligence did not estop the plaintiffs from proving wilful and wanton conduct on the part of the railroad.

At this juncture of the opinion, the distinction between simple negligence and wilful and wanton conduct should be stressed. The Supreme Court of Illinois has recently stated:

"This court has variously defined wilful and wanton conduct as that `committed under circumstances exhibiting a reckless disregard for the safety of others' (Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 583), `conduct which tended to show such a gross want of care and regard for the rights of others as to justify the presumption of wilfulness' (Lake Shore & Michigan Southern Ry. Co. v. Bodemer (1892), 139 Ill. 596, 607), `conduct which imports consciousness that an injury may probably result from the act done and a reckless disregard of the consequences' (Brown v. Illinois Terminal Co. (1925), 319 Ill. 326, 331), and conduct `where the act was done with actual intention or with a conscious disregard or indifference for the consequences when the known safety of other persons was involved' and `the knowledge concerning other persons was actual or constructive' (Myers v. Krajefska (1956), 8 Ill.2d 322, 328-29, 134 N.E.2d 277, 280). We need not resolve all of the fine distinctions among these definitions with yet another restatement of the wilful and wanton standard." (Spring v. Toledo, Peoria & Western R.R. Co. (1977), 69 Ill.2d 290, 293-94, 371 N.E.2d 621, 623.)

In Spring, the court also reaffirmed Illinois decisions holding that contributory negligence is no defense to wilful and wanton conduct.

With these various definitions in mind, the railroad argues that the evidence does not support a finding of even simple negligence on its part in failing to provide a safe crossing, let alone wilful and wanton conduct. In other words, defendant contends that there must at least be a sufficient quantum of evidence from which a jury could conclude that defendant has breached its duty of due care and was negligent before the second step of wilful and wanton misconduct can be achieved.

Merchants National Bank v. Elgin Joliet & Eastern Ry. Co. (1970), 121 Ill. App.2d 445, 257 N.E.2d 216, gives an excellent summary of the railroad's duty to protect its crossings. The amount of protection required at a crossing is dependent upon the circumstances existing at the particular crossing at the time of the approach of the vehicle. The questions of hazard and protection are ordinarily for the jury and factors to be considered are population and traffic, physical obstruction to view, and the effect which that amount of confusion incident to railroad or other business in the area would have on the sight or hearing of ordinary signals. See also Baker v. Norfolk & Western Ry. Co. (1970), 120 Ill. App.2d 296, 256 N.E.2d 887.

• 2 It has been held that railroad crossings are inherently dangerous. (Coleman v. Illinois Central R.R. Co. (1974), 59 Ill.2d 13, 319 N.E.2d 228.) However, it is...