Pearce v. Illinois Cent. Gulf R. Co.

• Decision Date: 25 September 1980
• Docket Number: No. 79-570,79-570
• Citation: 89 Ill.App.3d 22,44 Ill.Dec. 196,411 N.E.2d 102
• Parties: , 44 Ill.Dec. 196 William Thomas PEARCE, Plaintiff-Appellant, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, a Foreign Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 102

411 N.E.2d 102

89 Ill.App.3d 22, 44 Ill.Dec. 196

William Thomas PEARCE, Plaintiff-Appellant, v.ILLINOIS CENTRAL GULF RAILROAD COMPANY, a Foreign Corporation, Defendant-Appellee.

No. 79-570.

Appellate Court of Illinois, Fifth District.

Sept. 25, 1980.

Lindholm & Williamson, Peoria, for William Thomas Pearce; Nile J. Williamson, Peoria, of counsel.

William J. Novick of Fowler & Novick, Marion, for Illinois Cent. Gulf R. Company.

JONES, Presiding Justice:

Plaintiff, William Thomas Pearce, brought this action for personal injuries based on a collision between his pickup truck and a train owned by defendant, Illinois Central Gulf Railroad, at about 8:15 a. m. on May 20, 1978 in Williamson County.At trial, after plaintiff had presented his case in chief, the trial court directed a verdict in defendant's favor and rendered a judgment thereon.Plaintiff appeals seeking a new trial, urging that (1) the directed verdict was improper under the standard in Pedrick v. Peoria and Eastern Railroad Co.(1967), 37 Ill.2d 494, 229 N.E.2d 504, (2)the trial court erroneously struck portions of plaintiff's complaint, and (3)plaintiff's offer of proof of certain Illinois Commerce Commission rules was improperly denied.The trial court found in his lengthy written order that "the Court cannot say as a matter of law that plaintiff was not in the exercise of due care and caution for his own safety."But the court also found that none of the charges of negligence or wilful conduct had been proved.

Plaintiff, a coal miner, had been working the third shift at the Peabody Coal Company's Will Scarlett mine for eight months at the time of the accident.The mine could be reached by either a county road or what the witnesses referred to as a coal haulage road.Plaintiff's witnesses agreed that the majority of the mine employees used the haulage road to get to and from the mine and that the county road was very rough and at times impassable.There was no testimony as to the number of employees who worked at the mine or who used the haulage road.The haulage road ran generally east and west, the mine being at the west end.Going away from the mine to the east the haulage road curved gently and crossed two sets of railroad tracks.Defendant Illinois Central operated its trains upon the easternmost set of tracks.The two sets tracks were estimated as being about 150 feet, or six to eight car lengths, apart.The road between them curved slightly.

The Illinois Central tracks were guarded by flashing red lights, a pair on either side of the crossing, and a bell which rang when the lights flashed.All four flashing lights were visible from either side when operating.All mine employees who testified agreed that the lights frequently became activated when no train was approaching.The witnesses also agreed that the haulage road was extremely dusty in dry weather and that the coal company watered it frequently to control the dust.However, just prior to the collision in question it had rained and the road was wet and muddy.

Steven Craig, a mine employee, testified for the plaintiff that he was driving a road grader eastbound toward the railroad crossing just prior to the accident.Pearce's truck had passed him about one-half to three-quarters of a mile from the crossing.Craig had first realized an accident had occurred when he saw Pearce's damaged pickup truck facing away from the crossing.Craig testified the grader was very loud and that he sometimes wore ear muffs because of the noise.He was not sure whether he was wearing them at the time in question, but he did not hear the crossing bell or a train whistle.The sun was up but not visible because it was behind foliage.Craig testified that the crossing could be seen at a distance of 150 yards when approaching from the west.On one prior occasion he had seen a train backing through the crossing and the flashers were not then operating.He stated the haulage road was owned and maintained by the coal company and that the company had placed a speed limit sign thereon.At the entrance of the haulage road was a sign which stated "private" and "no trespassing."

Ellis Simpson, a longtime employee at Will Scarlett, testified for plaintiff that he was headed west on the haulage road toward the mine at the time of the accident.He did not see Pearce's truck prior to the accident.Simpson heard the train's intermittent whistle when he was about 600 yards from the crossing.When he reached the crossing the northbound train had already started across the road, the red signal lights were flashing and the bell was ringing.He had no trouble seeing the lights.The lights on the mine side were working when he finally crossed the tracks.He had no trouble seeing them.He estimated the train's speed as 45 miles per hour.He did not see Pearce's truck or know that a collision had occurred until the train slowed down.Pearce told him immediately after the accident that he had never seen the train.Pearce's truck had left straight skid marks on the road and Simpson estimated them to be 100 feet long.

Regarding the condition of the crossing, Simpson testified that the crossing was visible for 200 yards from the mine side on the haulage road.From that distance, however, little of the railroad track was visible because of foliage and a high embankment.He estimated that one would have to be thirty feet from the crossing on the west side to see the front of an oncoming northbound train.Simpson testified the coal company had placed flagmen at the crossing on at least one occasion when the crossing lights were flashing and no train had activated them.The coal company had also removed foliage near the crossing following complaints by coal company truck drivers of hindered vision.Simpson was unable to recall the extent of the foliage at the crossing at the time of the accident.Asked whether he had ever seen anyone other than coal company employees removing foliage there, he replied that he had seen railroad employees working at the crossing "quite a few times."Simpson also related that another coal company employee had been involved in a car-train accident at that crossing a few years previously and that that driver had been headed away from the mine as was Pearce.He estimated the haulage road was 15 years old.

Plaintiff testified in his own behalf that when the accident occurred the sun was just breaking through the foliage.He estimated his speed along the haulage road as 30 to 35 miles per hour, increasing when he came out of the curve before the crossing to 35 to 40 miles per hour.He did not remember hitting the train or seeing flashing lights.He was asked the following questions and gave the following answers regarding the flashing lights:

"Q.Did you look for them?

A.Uh, when you are approaching a crossing, the lights are right there, there is basically no way you could help from seeing them.But for some reason I didn't, I didn't notice them or didn't see them.

Q.Did you look for them on that day?

A.Yes.When you go-like I said, when you go into the crossing, they are there and I seen trains go over there before and the lights work, and basically not work * * *."

He testified further on cross-examination:

"Q.* * * You are not telling the jury that you looked at that flasher and it was not working, you are not telling the jury that, are you?

A.Yes.

Q.When did you look?

A.Well, when I got up there.

Q.And, uh, uh, what did you see when you looked?

A.Well, I am looking at it all the time while I am driving toward it."

Pearce testified the lights could be seen from the mine side of the crossing from several hundred feet back.The lights were always dirty, as he knew even then.He did not recall hearing anything as he approached the crossing.He did not recall whether his truck windows had been open and did not recall the noise from Steven Craig's road grader as being significant near the crossing.Pearce testified that visibility was very poor in the direction from which the train had come.

Asked what happened when the collision occurred, Pearce replied, "I was driving along and I glanced up and, well, I was just looking up, driving along, and all of a sudden there was an engine and that's the last thing I remember."He estimated the engine was two or three car lengths directly ahead of him when he first saw it.He did not know whether the engine he saw was the first one on the train.

Vincent Besherres, another Peabody employee at Will Scarlett, testified for plaintiff regarding conditions near the crossing.To the south, the direction from which the train that hit Pearce came, the track was cut into a hill.Thus, a train coming from that direction could not be seen until it was 25 to 30 feet south of the crossing, and was difficult to see from either side of the crossing.The flashing lights became "awful dirty" due to the dust on the haulage road, and he had never seen anyone clean them.When he left the mine after the third shift the crossing lights were sometimes difficult to see because of the sun above them.

Besherres testified the haulage road was generally used by mining machinery and 100-ton haulage trucks with wheels "(y)ou can't touch the top of" and trailers "the length of this room."

Plaintiff's last witness, Kenneth Samuel, a claims agent for Illinois Central, testified under section 60 of the Civil Practice Act(Ill.Rev.Stat.1977, ch. 110, par. 60).According to Samuel, Illinois Central contracted to have the crossing in question sprayed twice in 1978 to retard the growth of foliage.The contractor, Spray Services, Inc., agreed to a "tentative schedule" to spray Illinois Central's Metropolis-to-Bluford district including this crossing on May 10(10 days prior to the accident) and July 4, 1978.The spraying was actually done June 1 and August 22.To Samuel's knowledge no Illinois Central employees sprayed the crossing in 1978.Samuel was...