Martin v. Illinois Cent. Gulf R.R., 1-90-0998

• Decision Date: 31 December 1991
• Docket Number: No. 1-90-0998,1-90-0998
• Citation: 179 Ill.Dec. 177,237 Ill.App.3d 910,606 N.E.2d 9
• Parties: , 179 Ill.Dec. 177 Catherine C. MARTIN, as Special Administrator of the Estate of David Martin, Deceased, Plaintiff-Appellee, v. ILLINOIS CENTRAL GULF RAILROAD, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 9

606 N.E.2d 9

237 Ill.App.3d 910, 179 Ill.Dec. 177

Catherine C. MARTIN, as Special Administrator of the Estate of David Martin, Deceased, Plaintiff-Appellee, v. ILLINOIS CENTRAL GULF RAILROAD, Defendant-Appellant.

No. 1-90-0998.

Appellate Court of Illinois First District, Fourth Division.

Dec. 31, 1991.

Rehearing Denied Dec. 10, 1992.

Williams & Montgomery, Ltd., Chicago (James K. Horstman, Barry L. Kroll, Mark A. Miller, and Lloyd E. Williams, Jr., of counsel), for defendant-appellant.

Ialongo & Meyer, Chicago (James G. Meyer, A. Mark Ialongo, and Fred Lambruschi, of counsel), for plaintiff-appellee.

Justice JOHNSON delivered the opinion of the court.

This appeal arises from a railroad crossing accident that occurred on December 8, 1981, when a vehicle driven by David Martin collided with a train in Lemont, Illinois. Plaintiff, Catherine Martin, as special administrator of the estate of David Martin, deceased, brought suit against defendant, Illinois Central Gulf Railroad (the Railroad). The circuit court of Cook County entered judgment on jury verdicts in favor of plaintiff and against defendant as to count I (negligence) and count II (willful and wanton misconduct). Defendant's post-trial motion for judgment notwithstanding the verdicts was denied and defendant filed a timely notice of appeal.

On appeal, defendant contends that the trial court erred when it (1) denied its motions for directed verdicts on count I (negligence) and count II (willful and wanton misconduct); (2) ruled that Martin's negligence would not be compared with its willful and wanton misconduct; (3) admitted evidence of the Illinois Commerce Commission proceedings concerning the suggested upgrading of the Industrial Street crossing; (4) denied statistical evidence regarding statewide railroad crossings; (5) limited cross-examination of plaintiff's expert witness; and (6) restricted its evidence on damages.

We affirm in part and vacate in part.

On December 8, 1981, David Martin was killed when his vehicle collided with a train owned and operated by the Railroad at Industrial Street in Lemont, Illinois. The Railroad runs through Lemont, in a east-westerly direction and Industrial Street crosses the tracks in a north-southerly direction. New Avenue, a main street in Lemont, runs immediately south and parallel to the railroad tracks. Industrial Street, which intersects New Avenue and crosses the tracks, provides access to several small industries and at least one residence on the north side of the tracks.

On the day of the accident, Martin was driving his vehicle westbound on New Avenue while the train was traveling on the tracks in the same direction behind Martin. Martin turned right onto Industrial Street and attempted to cross the railroad tracks when his vehicle was struck by the train. Both the train and Martin's vehicle were traveling within the applicable speed limits. The train was 90-135 feet from the Industrial Street crossing when Edwin Parker, the engineer, realized that Martin's vehicle would not clear the tracks. Parker testified that he engaged the train's emergency stop about 2 seconds before impact, but could not stop the train in time to avoid a collision.

The only evidence to describe Martin's actions prior to the collision was the testimony of James Miller, the conductor of the train. Miller testified that immediately before the accident he saw Martin looking to his left, away from the train as he drove over the tracks. The weather was bright and sunny and visibility was clear for about one-half mile down the railroad track. Martin was familiar with the Industrial Street crossing. He travelled over the crossing several times a day.

The Industrial Street crossing was equipped with an autoflag device to warn drivers and pedestrians of approaching trains. The autoflag activates when an approaching train reaches a switch point about three-quarters of a mile from the crossing. The autoflag consists of flashing lights, two sets of ringing bells, and a moving pendulum. At the time of the accident, the bells, lights, and swinging pendulum were operating properly.

Plaintiff filed a negligence action against the Railroad, alleging that it failed to adequately maintain the railroad crossing in a safe condition. Specifically, plaintiff alleged that defendant failed to equip the crossing with protective gates and failed to give audible warning of approaching trains. After discovery had commenced, plaintiff filed an amended complaint, charging that defendant was guilty of willful and wanton misconduct by maintaining the railroad crossing in a dangerous condition. Specifically, plaintiff alleged that defendant failed to inventory the crossing as a public crossing and failed to provide city officials with a cost estimate for the installation of automated flashing light signals and gates for the Industrial Street crossing.

Plaintiff's expert witness, Harold Michael of Purdue University, testified that in his opinion, the wigwag signal at Industrial Street was an ineffective device to warn motorists of approaching trains. He testified that the wigwag system was difficult for motorists to see from New Avenue and only after a motorist turned onto Industrial Street was the wigwag apparent. He further stated that after a motorist turned onto Industrial Street (60 feet from the track) it is too late for the signal to be very effective. Michael testified that the fact that the Railroad had a double main track was sufficient to warrant installation of gates and flashing lights. He also testified that installing gates and lights would have corrected the safety problems at the crossing.

At trial, plaintiff asserted that defendant incorrectly inventoried the Industrial Street crossing as a private crossing 6 years before the accident, thus removing it from the Railroad's jurisdiction. Bernard Morris, chief railroad engineer for the Illinois Commerce Commission (ICC), testified that there were rules and guidelines as to what constitutes private and public crossings and that the Railroad had the opportunity to designate the crossing as public when it did its 1974 inventory. Morris further testified that, after the 1974 inventory, the ICC had authority to change the designation of a crossing from private to public, and that both the local highway authority and the railroad company had the right under ICC rules to request a change in crossing designation. Defendant stated that the only way the crossing could have been brought within the jurisdiction of the ICC was for "someone" to petition the ICC to recognize it as a public crossing. Defendant contends that the petitioning process had not been initiated prior to the date of Martin's accident and that it could do nothing with respect to upgrading the crossing. Plaintiff's evidence established that had the Industrial Street crossing been designated a public crossing it would have met the ICC criteria for installation of gates and flashing lights. Morris stated that in his 25 years with the ICC he had never seen a wigwag signal installed at a public crossing.

The trial court, over objection of defendant, permitted plaintiff to introduce evidence that city officials and a representative from the ICC had requested the Railroad to upgrade the Industrial Street crossing in January 1981. John Bracken, then mayor of Lemont, testified that a meeting was held to discuss complaints about the Spruce Street crossing. He further stated that the participants also discussed and viewed the Industrial Street crossing and proposed that the signals at the crossing be upgraded.

On December 12, 1989, the jury returned verdicts for plaintiff on the negligence count for $1,710,000 and the willful and wanton misconduct count for the same amount. On the negligence count, the jury found that Martin's negligence contributed to 44% of the damage and thereby reduced the verdict to $957,600. On the second count, the jury found that Martin's willful and wanton misconduct contributed to 35% of the damage and reduced the verdict to $1,111,500. Judgment was entered on the verdicts and defendant appealed.

First, defendant argues that the trial court erred in refusing to grant its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial on both the negligence and willful and wanton misconduct counts. Defendant contends that the evidence on both counts was insufficient to warrant submission of the case to a jury.

"A motion for judgment notwithstanding the verdict should be granted when all the evidence, viewed in the light most favorable to the non-moving party, so overwhelmingly favors the movant that no contrary verdict could ever stand." (Downing v. United Auto Racing Association (1991), 211 Ill.App.3d 877, 883-84, 156 Ill.Dec. 352, 570 N.E.2d 828, citing Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 503, 229 N.E.2d 504.) A motion for a new trial should not be granted unless the jury's verdict is against the manifest weight of the evidence. (Downing, 211 Ill.App.3d at 884, 156 Ill.Dec. 352, 570 N.E.2d 828.) "A verdict is not against the manifest weight of the evidence unless it is palpably erroneous and wholly unwarranted." Hunter v. Chicago & North Western Transportation Co. (1990), 200 Ill.App.3d 458, 465, 146 Ill.Dec. 253, 558 N.E.2d 216.

Defendant maintains that under the holding in Robertson v. New York Central R.R. Co. (1944), 388 Ill. 580, 58 N.E.2d 527, when a train and a person in a motor vehicle approach a railroad crossing simultaneously, it is the duty of the motorist to stop and not attempt to pass in front of the train. It is not the duty of the railroad to stop its train. Defendant further asserts that under Illinois law, it is not required to anticipate and guard against the possibility that Martin would disregard its warning; rather, it had a right to assume Martin would exercise due care for his own safety. (Sheahan v. Northeast...