National Bank of Bloomington v. Norfolk & W. Ry. Co.

• Decision Date: 24 March 1977
• Docket Number: Nos. 12253,12287,s. 12253
• Citation: 5 Ill.Dec. 898,362 N.E.2d 369,46 Ill.App.3d 757
• Court: United States Appellate Court of Illinois
• Parties: , 5 Ill.Dec. 898 The NATIONAL BANK OF BLOOMINGTON, Administrator of the Estate of Ray Weldon Groves, Deceased, and Marie Booe Groves, Plaintiffs-Appellants, v. NORFOLK & WESTERN RAILWAY COMPANY, a corporation, et al., Defendants- Appellees. The NATIONAL BANK OF BLOOMINGTON, Administrator of the Estate of Ray Weldon Groves, Deceased, and Marie Booe Groves, Plaintiffs-Appellees, v. NORFOLK & WESTERN RAILWAY COMPANY, a corporation, et al., Defendants- Appellants.

Page 369

362 N.E.2d 369

46 Ill.App.3d 757, 5 Ill.Dec. 898

The NATIONAL BANK OF BLOOMINGTON, Administrator of the

Estate of Ray Weldon Groves, Deceased, and Marie

Booe Groves, Plaintiffs-Appellants, v. NORFOLK & WESTERN RAILWAY COMPANY, a corporation, et al.,

Defendants- Appellees.

The NATIONAL BANK OF BLOOMINGTON, Administrator of the

Estate of Ray Weldon Groves, Deceased, and Marie

Booe Groves, Plaintiffs-Appellees, v. NORFOLK & WESTERN RAILWAY COMPANY, a corporation, et al.,

Defendants- Appellants.

Nos. 12253, 12287.

Appellate Court of Illinois, Fourth District.

March 24, 1977.

Costigan, Wollrab, Fraker, Wochner & Nierynck, Bloomington, for appellants in No. 12253; Robert W. Neirynck, Bloomington, of counsel.

Jerome Mirza & Associates, Ltd., Bloomington, for appellants in No. 12287.

Jerome Mirza & Associates, Ltd., Bloomington, for appellees in No. 12253.

Costigan, Woolrab, Fraker, Wochner & Neirynck, Robert W. Neirynck, Bloomington, for appellees in No. 12287.

CRAVEN, Presiding Justice.

The issues presented by this appeal have their origin in a train-car collision in Bloomington, Illinois, resulting in the automobile driver's death. After a jury trial, the circuit court of McLean County entered judgment on jury verdicts which (1) awarded the administrator bank $20,000 compensatory damages for wrongful death, and (2) awarded Marie Groves, the plaintiff-widow, individually, $4348.60 for medical, funeral and like expenses paid by her. Finally, the circuit court entered a judgment notwithstanding the verdict in favor of the defendant railroads on the jury's verdict of $300,000 to the administrator for punitive damages against the defendants under certain provisions of the Public Utilities Act (Ill.Rev.Stat.1971, ch. 111 2/3, par. 77). The defendants appeal from the two compensatory judgments entered against them and the plaintiffs appeal the judgment notwithstanding the verdict vacating the award for punitive damages. These appeals were consolidated for purposes of briefs, argument and opinion.

The facts in this case are that a street in Bloomington, Illinois, Lincoln Street, which runs east and west, intersects with two railroad tracks that run north and south. The west set of tracks belong to the defendants Penn Central and Peoria and Eastern railroads. The east set of tracks is leased by the Norfolk and Western from the Wabash Railroad Company. The only warning device at the intersection is a wooden cross-buck sign stating 'Railroad Crossing.' In the northeast quadrant of the crossing there is a house, the address of which is 1211 South Clayton Street. This house is east of the Norfolk and Western tracks. An exhibit in evidence indicates that the house encroaches 3 feet 10 inches upon the right-of-way and there is a space of 12 feet 6 inches from the house to a fence, and then from the fence to the actual tracks of the Norfolk and Western is a distance of 13 feet 7 inches. The decedent, Ray Weldon Groves, was struck by a freight train operated by the defendant Norfolk and Western at this intersection. The decedent was traveling in a westerly direction at about 2 p.m. A brief summary of the evidence with reference to the incidents involved is as follows. James Bryant, who lives eight or nine lots west of the crossing on Lincoln, testified that Lincoln Street was substantially improved in 1967 and as a result of that improvement, the vehicular traffic in the area more than tripled. After the 1967 improvements and the widening and paving of the road, the traffic showed that 8315 vehicles went over the crossing in a 96 hour period of time. After the increased traffic flow, accidents occurred at the crossing.

A locomotive fireman for the defendant Norfolk and Western Railway testified that he was part of the crew of the train that was involved in the collision with the decedent. At the time, he was in the fireman's seat on the left-hand side of the locomotive. He stated that he was looking to the south and to the east but he did not see the automobile that collided with the train before the impact. He also stated it was a cold, overcast winter day and that the house with trees and shrubbery near the tracks obstructed his view in the south and east directions. He indicated that the train was traveling at a rate of about 25 miles per hour as it approached the crossing, and by reason of the suddenness of the incident, the brakes were not applied prior to the collision. He indicated the whistle had been blowing for approximately 1500 feet, the light was on and the bell was ringing. A city policeman who investigated the accident indicated that the street was slippery. He saw nothing to indicate any skidmarks and testified that the posted speed limit on Lincoln Street was 30 miles per hour. The evidence indicates that the Peoria and Eastern right-of-way was 65.55 feet wide and the Norfolk and Western right-of-way was 54.45 feet wide.

Witnesses testified with reference to the prior collisions at the same crossing after the street was paved and widened. Floyd Schroader, the sheriff of McLean County, testified that he investigated an automobile-train collision at this crossing on March 21, 1968. He stated that the car involved in the accident was traveling west on Lincoln and collided with a Norfolk and Western train going south. A witness, George Hormell, testified that in February 1969 his car collided with a train at the Lincoln Street crossing. He was traveling west on Lincoln and the train was coming from the north on the Penn Central track. Danny Shepherd testified that in December 1967 he was involved in a vehicle-train collision at the Lincoln Street crossing. He was traveling west on Lincoln and the train owned by the Norfolk and Western was going south. Winston Lee Glass testified as to the same incident investigated by the sheriff.

Testimony was received from witnesses that the decedent was a good and careful driver and had always observed the speed limit. Marie Groves, the wife of the decedent and one of the plaintiffs, testified that she and the decedent had been married for 51 years, that he was 73 years of age, was retired and was in very good health. She also testified as to his careful driving habits. The decedent's son, Jack Groves, testified that he had talked to his father at the hospital before his death and his father indicated he did not know what happened and stated he did not hear anything.

The owner of the house testified as to his ownership and stated that the Norfolk and Western had never made any claim or said anything to him with reference to the fence on his property or anything with reference to land east of that fence. He maintained the backyard, the bushes and the fence and always had possession of the fence and land east of it. Photographic evidence was received and testimony was received with reference to the visibility at the crossing. An engineer employed by Norfolk and Western testified that he took sight-line measurements of the crossing from the center of Lincoln Street to determine how far one can see down the tracks to the north from a given distance. By standing on the center line of Lincoln Street at 100 feet east of the crossing, he could see a distance of 60 feet north down the tracks; by standing in the center line of Lincoln Street 40 feet east of the crossing, he could see a distance of 85 feet down the tracks; at 20 feet from the crossing he could see 450 feet north down the tracks; and at 30 feet east of the crossing, he could see a distance of 110 feet north down the tracks. An employee of the railroad who was riding on the east side of the second engine of the train testified that the automobile driven by the decedent was traveling at approximately 25 to 35 miles per hour. He first saw the car when it was 200 to 300 feet east of the crossing. At this point, the car disappeared from his view because of the house and he did not see the car again until it came out from behind the house and onto the crossing. The train was then 150 to 200 feet north of the crossing when the car came out from the back of the house traveling at the indicated speed. He indicated that the train whistle had been blowing approximately 500 to 600 feet prior to the impact and that the train was traveling between 25 to 35 miles per hour.

In addition to the verdicts returned by the jury as indicated above, the jury also returned a verdict absolving the Penn Central and Peoria and Eastern railroads of all liability. By way of special interrogatory the jury specifically found the decedent was not guilty of contributory negligence or contributory wilful and wanton conduct, and further found that the defendants Norfolk and Western and the Wabash railroads were guilty of negligence proximately causing the decedent's death and guilty of a wilful violation of Rule 205 of the Illinois Commerce Commission.

The sole issue presented by the defendant railroads related to their contention that the decedent, Ray Weldon Groves, was guilty of contributory negligence as a matter of law. In our examination of this issue we first address ourselves to the type of obstruction with which we are dealing. The defendants characterized the obstruction as 'partia...