Paulison v. Chicago, M., St. P. and P. R. R., Inc., 77-59

• Decision Date: 24 July 1979
• Docket Number: No. 77-59,77-59
• Citation: 392 N.E.2d 960,74 Ill.App.3d 282,30 Ill.Dec. 195
• Parties: , 30 Ill.Dec. 195 Gloria M. PAULISON, Administrator of the Estate of Gordon R. Paulison, Deceased, Plaintiff-Appellant, v. CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD, INC., a corporation, Fred Dozier and William J. Thomas, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 960

392 N.E.2d 960

74 Ill.App.3d 282, 30 Ill.Dec. 195

Gloria M. PAULISON, Administrator of the Estate of Gordon R Paulison, Deceased, Plaintiff-Appellant, v. CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD, INC., a corporation, Fred Dozier and William J. Thomas Defendants-Appellees.

No. 77-59.

Appellate Court of Illinois, Second District.

July 24, 1979.

Sidney J. Karasik, Chicago, Paul W. Kaiser, Jr., Waukegan, for plaintiff-appellant.

James P. Reedy & Associates, Chicago, for defendants-appellees.

LINDBERG, Justice:

The plaintiff, as Administrator of the estate of Gordon R. Paulison, deceased, brought a wrongful death action against the defendant Chicago, Milwaukee, St. Paul & Pacific Railroad Co., Inc. and some of its personnel to recover damages resulting from a railroad crossing accident. At the close of all evidence the case against co-defendant Dozier, who had been acting as the train's engineer, was dismissed. The jury returned a general verdict of not guilty in favor of the railroad, but in answer to a special interrogatory found that the deceased was not guilty of contributory negligence. Plaintiff appeals from the trial courts' entry of judgment on the general verdict.

On December 13, 1973, the decedent was driving south in his International Harvester Scout on St. Mary's Road near Libertyville, Illinois on his way to work. It was snowing heavily and visibility was reduced. While crossing defendant's railroad track, the decedent's vehicle was struck and demolished by a Chicago-bound commuter train. Paulison and his two passengers were killed instantly.

St. Mary's Road is a two lane highway. Near the railroad crossing in question the road runs through a cut. The crossing is protected by a sign and flashing lights. The vicinity was laden with shrubs, trees, and other vegetation. Plaintiff's witness, Neil Span, was driving a truck southbound over the crossing just ahead of the Paulison vehicle. Span testified that the warning flashers were so obstructed by snow that they were not blinking. He didn't see the train until he heard its whistle blow. After he got his truck over the track he heard the impact of the train and the Paulison Scout.

The train involved was some 30 minutes behind schedule and was traveling approximately 60 m. p. h. The engineer of the train testified that at the whistle post about a quarter of a mile from the crossing he activated the train's warning bell and began to blow the train's horn. The engineer further testified he first saw the decedent's Scout when it was approximately two (2) railroad car lengths away. The vehicle did not slow down. The engineer immediately applied the emergency brake and sounded the horn. The train collided with the Scout dead center. The train finally came to a stop approximately a quarter of a mile past the intersection. There was conflicting testimony of whether or not the warning flashers were visible at the time of the accident. A number of witnesses, including Span and Herbert Bracher, captain of the Libertyville Fire Department, testified that the flasher lights were so snow covered that day that no light was coming through. However, other witnesses, including railroad employees and a sheriff's investigator, testified that the flashing lights were visible after the accident.

On appeal plaintiff alleges a number of prejudicial errors including: the admission of evidence concerning prior accidents at the crossing, the failure to find that the general verdict and answer to the special interrogatory were inconsistent, the precluding of the jury from consideration of certain theories of the plaintiff's case, the giving of certain of the instructions tendered by the defendant, the restricting of the questioning of plaintiff's expert witness, and the admission of evidence of railroad speed limits.

Apart from the issue of the answer to the special interrogatory controlling the general verdict, the thrust of plaintiff's contentions on appeal is that the trial court prevented plaintiff from fully presenting her theory of the case to the jury. In plaintiff's view, the trial court's misunderstanding of plaintiff's case led not only to the dismissal of portions of the complaint and the corresponding denial of proposed jury instructions, but to alleged errors in evidentiary rulings as well.

Plaintiff offered the following instructions as her theory of the case:

"The plaintiff claims that her decedent suffered his death while exercising ordinary care and that the defendant was negligent in one or more of the following respects:

Operated, maintained and controlled its said crossing so that as a direct and proximate result thereof plaintiff's decedent suffered his death;

Operated, maintained and controlled its said crossing and the approaches thereto so that the same were not reasonably safe, in violation of a statute of the State of Illinois;

Failed to provide automatic gates at the crossing notwithstanding the increase of traffic over it;

Failed to have a proper division of grade at said crossing;

Failed to keep its right-of-way clear of brush, shrubbery, trees and other unnecessary obstructions in violation of a rule of the Illinois Commerce Commission;

Operated, maintained and controlled its train at an excessive rate of speed in view of prevailing conditions so that as a direct and proximate result thereof plaintiff's decedent suffered his death;

Failed to keep a proper and adequate lookout for vehicular traffic approaching the said crossing from the North;

Failed to sound its horn, bell or whistle when one-quarter of a mile from the crossing and until the crossing was reached in violation of a certain statute of the State of Illinois;

Failed to apply the brakes, attempting to slow down or stop the forward movement of the train."

The trial court gave a similar instruction but eliminated the paragraphs referencing automatic gates, grade separation, and proper lookout. ¹ Corresponding portions of plaintiff's complaint were stricken by the trial court. The trial court indicated it eliminated these sections because there was not sufficient evidence to support them and because it felt the first paragraph of the instruction given ("Operated, maintained and controlled its said crossing * * * so that the same were not reasonably safe, in violation of the statute of the State of Illinois") included the more detailed instructions requested by plaintiff's attorney.

The rule in Illinois on jury instructions is expressed in Hitt v. Langel (1968), 93 Ill.App.2d 386, 236 N.E.2d 118, where the court noted:

" 'It is elementary that every party has the right to have the law applicable to his case stated fairly, clearly, distinctly and conveyed to the jury with substantial accuracy so that it may not be misled to the prejudice of the party * * *. He has the right to have the jury instructed upon his theories of recovery or defense * * *. Failure to give a party these rights which are tantamount to a fair and just trial, whenever the case is close upon its facts or the evidence conflicting, and the failure is material, requires that the verdict be set aside, the judgment reversed and the cause remanded for new trial.' (Citation.) Each party is entitled to have the court instruct the jury on his theory of the case, provided that there is an evidentiary basis for the instruction. 'All that is required in order to justify the giving of an instruction is that there is some evidence in the record to support the theory set out in the instruction.' " Hitt v. Langel at 393, 236 N.E.2d at 121-122 quoting Wrighthouse v. Brown (1964), 52 Ill.App.2d 191, 196, 201 N.E.2d 752.

It is necessary, then, to determine if the omissions represented valid legal theories and if there was some evidence in the record to support the theories.

To determine whether the failure to provide automatic gates was a valid basis for recovery, it is necessary to examine the state standards presented at trial. These standards, which are promulgated by the Illinois Department of Transportation, are addressed to the question of the appropriate measures to be taken to render railroad crossings reasonably safe, and are therefore relevant to the question of negligence. Merchants National Bank of Aurora v. Elgin, Joliet and Eastern Railway (1971), 49 Ill.2d 118, 273 N.E.2d 809.

The standards consider various factors: (1) design hourly volume (DHV), (2) index of hazard, and (3) single versus multiple tracks. The DHV is then used to classify the highway as "C", "D", "E", "F", etc. The index of hazard (or exposure factor) is "the product of the average daily traffic ten years after completion of construction times the current number of trains per day." The index of hazard is then used to determine normal treatment in regard to the appropriate protection for the crossing. In the instant case the DHV was between 642 and 963. The average daily traffic (ADT) in 1973 was approximately 6500 vehicles per day. There were 30 trains per day passing the crossing. The index of hazard using 10 year projected traffic growth was 308,070. The index of hazard using 1973 traffic statistics was 192,600. Based on these calculations, St. Mary's Road would be classified as a "C" highway (DHV over 400) and the general requirements would be "grade separate, when feasible, for two or more tracks or for one track with six or more train movements per day. Protect grade crossing by automatic signal devices." Based on the index of hazard of 192,600, the normal treatment would also be grade separation. The record indicates that the cost of a grade separation would range from $150,000 to several million dollars.

The primary difficulty with the use of the state standards, in the instant case, is their failure to recommend automatic gates for a single railroad track no matter how great the volume of traffic or how large the index of hazard. The standards apparently view the purpose of the gates as protection...