Hunter v. Chicago & North Western Transp. Co.

• Decision Date: 20 June 1990
• Docket Number: No. 1-88-2260,1-88-2260
• Citation: 558 N.E.2d 216,146 Ill.Dec. 253,200 Ill.App.3d 458
• Parties: , 146 Ill.Dec. 253 Debra HUNTER, Successor Administrator of the Estate of Carl Hunter, Deceased, Plaintiff-Appellant, v. CHICAGO & NORTH WESTERN TRANSPORTATION COMPANY, a corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 216

558 N.E.2d 216

200 Ill.App.3d 458, 146 Ill.Dec. 253

Debra HUNTER, Successor Administrator of the Estate of Carl Hunter, Deceased, Plaintiff-Appellant, v. CHICAGO & NORTH WESTERN TRANSPORTATION COMPANY, a corporation, Defendant-Appellee.

No. 1-88-2260.

Appellate Court of Illinois First District, Third Division.

June 20, 1990.

Rehearing Denied July 18, 1990.

William J. Harte, Ltd. & Richard J. Prendergast, Ltd., Chicago (William J. Harte, Richard J. Prendergast, James Prendergast and Joseph E. Tighe, of counsel), for plaintiff-appellant.

James P. Daley, George H. Brant, Daniel J. Mohan, Chicago, for defendant-appellee.

Justice FREEMAN delivered the opinion of the court:

This appeal arises out of a car-train collision which occurred on April 8, 1972 in Glenview, Illinois. Plaintiff, Debra Hunter, as administrator of the estate of Carl Hunter, deceased, brought suit against defendants, Chicago & North Western Transportation Company (C & NW), and its employees, Robert Markham, John Klysen, and Alfred Johnson. Following a jury trial, a verdict was entered in favor of plaintiff and against C & NW as to Count I (survival action) and in favor of C & NW as to Count II (wrongful death action). Plaintiff appeals, contending that: (1) the jury's finding on the percentage of fault, attributable to the plaintiff, was against the manifest weight of the evidence; (2) the percentage of fault attributed to plaintiff was the result of trial error and improper argument of counsel; and (3) the trial court erred in denying plaintiff's motion for judgment notwithstanding the verdict as to the issue of liability for wrongful death. We affirm.

Lake Avenue is a four-lane highway in Glenview, which runs east and west, and is intersected by a single C & NW railroad track, which runs north and south. Both sides of the railroad crossing are protected by highway warning signs, which are located 600 feet from the crossing, cross-buck "railroad crossing" signs on the shoulders of the road, four flashing lights mounted on masts on the roadside, four overhead cantilevers, and a crossing bell. There are a total of 16 signals, eight facing east and eight facing west. On April 8, 1972, at about 7:30 a.m., plaintiff's decedent was driving east on Lake Avenue. C & NW's freight train, which had originated in Green Bay, Wisconsin, was proceeding to Chicago. The train maintained a speed of 30 miles per hour, five miles under the legal limit, as it entered the Lake Avenue crossing. Hunter's car and the train collided. Hunter received immediate medical attention for injuries which he sustained as a result of the collision. He died 10 years later, on February 8, 1982, in Centre, Alabama.

John Klysen, a retired engineer for C & NW, testified that at 1,200 feet from the train crossing the signaling devices are supposed to be activated. Since there are usually a few vehicles which continue to cross the tracks after the signals have been activated, the train crew watches the bull's-eyes, which indicate whether the crossing signals are actually flashing. Klysen stated that he faintly recalled that, near the Lake Avenue crossing, there was a fenced-in area on the right side where truck trailers were parked. The trailers were about 40 feet in length and, at about 300 feet from the crossing, the trailers obstructed his view of approaching eastbound traffic. However, he was able to see the traffic which was about two car lengths back from the crossing and, prior to the collision, he observed one or two vehicles, on both sides of the tracks, stopped at the crossing.

Alfred Johnson, (a retired C & NW brakeman), Robert Markham (previously employed by C & NW as a fireman and engineer), and Thomas Crubaugh, each testified on behalf of plaintiff pursuant to section 2-1102 of the Code of Civil Procedure. (Ill.Rev.Stat.1985, ch. 110, par. 2-1102.) Markham testified that upon reaching the whistle stop he activated the train bell and blew the whistle, giving two longs, a short and a long. He observed that the bull's-eyes were flashing, but he did not recall how many he had seen.

Both Johnson and Markham stated that cars continued to cross the tracks after the activation of the signals. Johnson testified that prior to the collision, he observed two eastbound cars stopped at the crossing. Neither Markham nor Johnson saw decedent's car approach the track.

After the collision, Johnson checked for interference on the train tracks, uncoupled the train cars to permit the passage of traffic and emergency vehicles, and then checked the signals. He stated that he could still hear the train bell ringing and, while he did not notice whether the signals were dirty or snow covered, he could see them flashing.

Crubaugh, the signals engineer and an officer of C & NW, testified that generally, the Illinois Commerce Commission orders the type of signaling device to be installed at a given crossing. According to him, the cantilevers at the Lake Avenue crossing, which were ordered by the Commission, were installed in March 1959. All of the signals at the crossing are powered by AC power, and in the event of a loss of electrical power, the circuitry of the crossing automatically changes over to a battery fed system. The voltage to each signal is 9.5 regardless of whether it is powered by electricity or by battery, and an inoperative bulb in any signal will not effect the operation of the other signals.

Crubaugh also testified that the Commission requires a minimum of 20 seconds advance signal warning before a train reaches the crossing. An approaching vehicle at the Lake Avenue crossing has 30 seconds to view the signals before the train reaches the crossing. In response to whether a crossing gate would have made the Lake Avenue crossing safer, Crubaugh stated, not necessarily, because motorists have been known to drive around the gates.

The evidence deposition of Jack DeChristopher, an occurrence witness, was read into the record. On direct examination DeChristopher stated that on the date of the collision he was traveling east, in the curb lane, and the decedent was driving behind him. DeChristopher was traveling at about 30-35 miles per hour when the decedent passed him.

DeChristopher first observed the train when it was at the crossing and, according to him, there was nothing about the signaling devices that indicated that the train was approaching. He stated that he heard neither a bell nor a whistle and, while he did not notice the overhead signals, he did observe that the signaling devices on the curb lane were not operating.

As he approached the crossing, DeChristopher noticed that there was another car stopped to the left of him. He stated that at the time of the collision, decedent's car was two to three car lengths ahead of him; there was only a split second between the time he stopped his car behind the decedent and the collision. After the collision, DeChristopher stood about three feet away from the signaling device on the curbside. The signals were working, but they were not visible because they had a "bad film and were dirty."

On cross-examination DeChristopher testified that he did not skid or slide when he stopped his car, and he never felt in danger of hitting the decedent's car from behind. Defense counsel referred DeChristopher to an earlier statement where, in response to the question of whether the decedent was speeding, DeChristopher responded, "[o]ff the record, yes." Also, in that earlier statement, in response to whether DeChristopher had noticed decedent's car a block or two prior to coming to the tracks, DeChristopher responded, "[w]ell, let's leave it this way for his sake."

Henry DePaepe, the lead signal maintainer for C & NW, testified that in addition to checking for proper operation of the signals, he was required to inspect the lights and insure that they were clean. Each time an inspection is performed the inspector records the date and time of the inspection and the operating condition of the signals in a record book. The book also contains notations of any crossing accidents. In the event of an accident, the signal maintainer is required to immediately turn in the book to his supervisor.

The record book for the Lake Avenue crossing, in which DePaepe had recorded this collision, dated back to 1957. Other than decedent's collision, no others were recorded therein. There was a notation in the book which indicated that the signals at the Lake Avenue crossing had been inspected on April 3, 1972 and that they were "operating okay."

On the date of the collision, DePaepe was called to the Lake Avenue crossing. He observed that the signals facing both the east and west were operating properly. As a result of the collision, the pole, which electrically powered the signals, was down, and the signals were operating on battery power. Nevertheless, according to DePaepe, the signals continued to flash with adequate brightness.

In her second amended complaint, plaintiff alleged a survival action (Count I) and a wrongful death action (Count II). The jury returned a verdict in favor of plaintiff and against C & NW as to Count I and found that both C & NW and decedent had been negligent. The jury determined the damages to be $1.5 million and attributed 95% of the fault to decedent and 5% to C & NW. The resulting damages award was $75,000. With respect to Count II, the jury found in favor of C & NW. The findings as to Markham, Klysen and Johnson are not the subject of this appeal.

Plaintiff's first contention on appeal is that the jury's finding, that plaintiff's decedent was 95% contributorily negligent, was against the manifest weight of the evidence. She seeks a new trial on this issue, and urges several factors in support thereof.

Before addressing plaintiff's arguments, we first set out the applicable legal standard. A verdict is not against the manifest weight of the evidence unless it is palpably erroneous and wholly...