McElligott v. Illinois Cent. R. Co.
| Decision Date | 03 August 1966 |
| Docket Number | Gen. No. 65--2 |
| Citation | 74 Ill.App.2d 121,219 N.E.2d 785 |
| Parties | Louise McELLIGOTT, Individually and as Administrator of the Estate of Francis W. McElligott, Deceased, Plaintiff-Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Kassly, Weihl, Carr & Bone, East St. Louis, for appellant, Rex Carr, East St. Louis, of counsel.
Burroughs, Simpson & Burroughs, Edwardsville, for appellee, Robert Mitten, Robert S. Kirby, Paul M. King, of counsel.
This is an appeal from the Circuit Court of Madison County, Illinois, in a wrongful death-personal injury action based upon a train-automobile collision. The first trial of the case resulted in a hung jury. In the second trial the plaintiff obtained a verdict as administratrix for the death of her husband and for her own personal injuries. The trial court ordered a new trial and the plaintiff's Petition for Leave to Appeal was granted.
On March 4, 1960, the plaintiff was driving an automobile in which her husband was a passenger. As she approached the Illinois Central Railroad crossing at 19th Street in Belleville, she observed a train headlight shining over a garage located to her right. She estimated that her speed at the time was 15 M.P.H. and that she was 30 feet from the crossing. There had been snow and ice on the ground for at least a week prior to the accident. The crossing and its approaches at the time of the accident, had not been cindered or salted, and they contained snow and ice and were very slippery.
As the train traveled, it was going up grade and the automobile, as it traveled, was going down a slight grade. Upon seeing the headlight, the plaintiff applied her brakes and then heard the train whistle which she had not heard before. When she applied her brakes, the automobile commenced sliding on the icy downgrade and, although she pumped her brakes and turned her front wheels to the left, it continued to slide toward the train. The automobile and the train came into collision at about the center of the street and about 10 feet from the front of the engine. The plaintiff estimated the speed of the train to be 45--50 M.P.H. As a result of the collision, the plaintiff suffered injuries and her husband died.
The particular crossing was not guarded by automatic flasher lights, gates or flagmen. The railroad's right of way was 100 feet in width, 50 feet on either side of the center of the track. The railroad had asphalted an area four feet wide, on both sides of the track. The City of Belleville had paved 19th Street to within four feet on each side of the track. It had also constructed curbs and sidewalks to within two feet on each side of the track.
The plaintiff, in her own right and as administrator of her husband's estate, filed suit against the defendant railroad company, alleging several acts of negligence in that the defendant:
(a) Failed to cause a bell and whistle or horn to be rung or sounded at the distance of at least eighty rods from the intersection, contrary to Ill.Rev.Stat. Ch. 114, Sec. 59.
(b) Operated the said train at an excessive and dangerous speed having due regard to the conditions then and there existing.
(c) Negligently and carelessly failed to exercise reasonable care in giving adequate and timely warning of the approach of its train to said crossing under the conditions then and there existing.
(d) Negligently and carelessly failed to provide automatic flasher lights, warning lights, gates, or flagmen at said crossing.
(e) Negligently and carelessly failed to maintain its said crossing and its approaches thereto within its right of way so as to be safe as to persons crossing same contrary to Ill.Rev.Stat. Ch. 14, Sec. 62, and to Illinois Commerce Commission Rule 206.
The defendant denied these charges and filed affirmative defenses to the effect that the plaintiff had not exercised due care, which defenses were stricken by the court as not alleging new matter. The first trial of the issues resulted in a hung jury.
The issues were subsequently retried in January, 1964, and the jury awarded the plaintiff $25,000 damages and awarded the estate of her husband $18,000 damages. During the course of the trial the plaintiff introduced into evidence, over the objection of the defendant, Illinois Commerce Commission Rule No. 206 which provides that:
At every grade crossing where the duty of constructing or maintaining either the crossing proper or its approaches (or any part thereof) is by statute, by order of the Commission, or in any lawful manner, placed upon a railroad company, it shall be the duty of the railroad company to construct and maintain the crossing or approaches so that at all times they will be safe as to persons or property.
The objection was made because there was no showing that the Rule was relevant in that there was no indication 'as to what right of way was concerned.'
Objections were also made to several instructions. Plaintiff's Instruction No. 10 provided that:
At the time of the occurrence in question there was in force in the State of Illinois a statute which provided that:
Hereafter, at all of the railroad crossings of highways and streets in this state, the several railroad corporations in this state shall construct and maintain said crossings, and the approaches thereto, within their respective right of way so that at all times they shall be safe as to persons and property.
If you decide that the defendant violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances and evidence in determining whether or not the defendant was negligent before or at the time of the occurrence.
Plaintiff's Instruction No. 11 provided that:
The plaintiff claims that she was injured and sustained damage and that decedent was killed while she and decedent were exercising ordinary care, and that the defendant was negligent in one or more of the following respects:
(a) In failing to sound the horn or bell on the engine when one-fourth of a mile from the crossing and in failing to keep sounding the horn or bell until the crossing was reached, contrary to a certain Statute of the State of Illinois.
(b) In operating its train at an excessive rate of speed in view of the conditions then prevailing.
(c) In failing to give adequate and timely warning of the approach of its train to the crossing in view of the conditions then prevailing.
(d) In failing to provide automatic flasher light or warning lights or gates or flagmen at the crossing when the defendant knew, or should have known, that a large number of motorists frequently travel the crossing, that the view of the tracks to the east was obstructed, and that the street approach to the crossing from the south was on a downgrade.
(e) In failing to maintain its crossing and its approaches thereto within its right of way so as to be safe as to persons crossing same.
The plaintiff further claims that one or more of the foregoing was the proximate cause of her injuries and of the death of decedent.
The defendant denies that it was guilty of negligence in doing any of the things claimed by plaintiff, and denies that the plaintiff and the decedent were in the exercise of ordinary care.
Defendant further denies that plaintiff was injured or sustained damages to the extent claimed. (Emphasis supplied.)
The defendant objected to plaintiff's Instruction No. 10 because the instruction did not limit the term 'approaches' to the distance of four feet and because it used the words 'within their respective right of way.' The defendant objected to plaintiff's Instruction No. 11 because it 'reiterates in paragraph (e) a duty of the defendant, not required by law, and does not fully state all the issues by the parties,' especially the affirmative defenses concerning contributory negligence which were stricken by the court. At no time during the instruction conference did the defendant's counsel or the court indicate any dissatisfaction with the use of the word 'safe' without a qualifying adjective or adverb.
In defendant's post trial motion for a directed verdict, or, in the alternative, for a new trial, it was claimed that the court erred in admitting Rule 206 because the 'jury was improperly led to believe that the defendant was required to remove ice and snow from its right of way' and because the 'defendant was not afforded the opportunity to show that said order has not been interpreted to impose such a duty on this defendant or on any carrier.' The defendant made no post trial claim that the court erred in giving any of the plaintiff's instructions. However, the trial court ordered a new trial stating in a lengthy opinion that it was error to use the word 'safe' in Rule 206 and in plaintiff's Instructions Nos. 10 and 11 because the use of the word made the defendant an insurer and implied that the defendant had an absolute duty to maintain its crossing and the approaches thereto safely and that it was error to use the word 'approaches' in the instructions and in the rule because the jury was in effect told that the defendant had the duty to maintain the area within the entire right of way. All other allegations of error made by the defendant were resolved by the court in the plaintiffs favor and its motion for a directed verdict was denied. The defendant has not appealed from this decision and any errors contained therein are waived.
Ordinarily, an appellate court will not review an order granting a new trial unless there is a showing that the court clearly and palpably abused its discretion. However, where only the correctness of a trial court's ruling on questions of law is involved, a court of review should allow a petition for leave to appeal from an order granting a new trial when a question is reasonably presented as to whether the court erred in so ruling. Randall v....
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