Puckett v. Soo Line R. Co.

• Decision Date: 22 March 1990
• Docket Number: No. 89-2186,89-2186
• Citation: 897 F.2d 1423
• Parties: Barbara PUCKETT, as Administrator of the Estate of Edward A. Wanago, Plaintiff-Appellant, v. SOO LINE RAILROAD COMPANY, a Minnesota Corporation, Lonnie R. Maves and Chris Gust, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1423

897 F.2d 1423

Barbara PUCKETT, as Administrator of the Estate of Edward A Wanago, Plaintiff-Appellant, v. SOO LINE RAILROAD COMPANY, a Minnesota Corporation, Lonnie R. Maves and Chris Gust, Defendants-Appellees.

No. 89-2186.

United States Court of Appeals Seventh Circuit.

Argued Dec. 15, 1989.

Decided March 22, 1990.

Alfred D. Stavros, Wheeling, Ill., Joseph L. Planera, Chicago Heights, Ill., for plaintiff-appellant.

Robert J. Hourigan, Gorham, Metge, Bowman & Hourigan, Chicago, Ill., for defendants-appellees.

Before CUDAHY, EASTERBROOK and KANNE, Circuit Judges.

CUDAHY, Circuit Judge.

A train owned and operated by the Soo Line Railroad Company (the "Soo Line") struck and killed Edward Wanago as he crossed a set of railroad tracks on the south side of Chicago. Barbara Puckett, Wanago's stepdaughter and the administrator of his estate, brought this diversity suit against the Soo Line and two of its employees, Lonnie Maves and Chris Gust, claiming that the defendants' negligent operation of the train caused Wanago's death. After the parties submitted various affidavits, the defendants moved for summary judgment. The district judge, concluding that Puckett had failed to produce any evidence supporting the elements of her case, granted the motion on May 12, 1989. Puckett now appeals from that decision and we reverse.

I.

On the misty night of March 12, 1986, Edward Wanago walked along the sidewalk toward the 55th Street crossing of the Indiana Harbor Belt railroad tracks. The crossing has flashers, bells and automobile gates, but no pedestrian gates. The parties do not dispute that these safety devices operated properly on the night of March 12.

Maves, the engineer, and Gust, the brakeman of the Soo Line train, sat in the rear of the locomotive as the train sped north along the easternmost set of three tracks toward the 55th Street crossing. Both men looked down the track several times as it approached the crossing, but neither saw anything unusual. Gust stated in his deposition that he first observed Wanago when the train was two to three car lengths (approximately 100 to 150 feet) from the crossing. Gust did not take any immediate action, he said, because Wanago was standing on the west rail of the middle set of tracks, not "bothering anything." Gust noticed that Wanago wore a cap with ear flaps and that, as he watched Wanago, Wanago never looked at the approaching train. Gust Dep. at 120-21. Gust thought that "maybe he [Wanago] didn't hear the train." Id. at 125.

Within seconds of seeing Wanago, Gust watched Wanago "shuffle" toward the tracks. He yelled to Engineer Maves to "plug it!"--to engage the emergency brake--but it was too late: the locomotive skidded 400-500 feet past the crossing, striking and killing Wanago. Maves never saw Wanago, nor did Thomas Kuckes, the train's conductor; Gust saw him for just an instant before the accident.

Barbara Puckett brought suit against the Soo Line, Maves and Gust for negligently operating the train; each side presented expert testimony regarding the operation of the train and the adequacy of the defendants' lookout. Further, Maves, Gust and Kuckes testified in their depositions that the train travelled at an appropriate speed for the evening's weather conditions; Puckett stated that her stepfather was a careful man who would not cross a street against the traffic signals. The district judge considered this evidence and held, as a matter of law, that the defendants were entitled to summary judgment. Puckett appeals from that decision.

II.

Summary judgment is properly granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Any doubts about the sufficiency of the evidence should be resolved in favor of the nonmoving party. Rodeo v. Gillman, 787 F.2d 1175, 1177 (7th Cir.1986). Of course, we review de novo a district court's grant of summary judgment. Colan v. Cutler-Hammer, Inc., 812 F.2d 357, 360 (7th Cir.) (per curiam), cert. denied, 484 U.S. 820, 108 S.Ct. 79, 98 L.Ed.2d 42 (1987).

Here, Barbara Puckett makes two arguments against the district judge's grant of summary judgment. She alleges that a genuine issue of material fact exists, first, regarding the crew's failure to see her stepfather in the tracks and to stop the train in time, and second, concerning the crew's failure to sound the horn or whistle to alert Wanago of the approaching train. We address each allegation in turn.

A. Failure to Stop the Train

Puckett argues that the defendants' failure to stop the train before it struck Wanago constitutes negligence. Of course, as a general matter, Illinois law does not require trains to make emergency stops whenever railroad personnel observe an individual near the tracks. Higgins v. Baltimore & O.R.R., 16 Ill.App.2d 227, 231, 147 N.E.2d 714, 716-17 (4th Dist.1958); see Sperry v. Wabash R.R., 55 F.Supp. 825, 826 (E.D.Ill.1944). But Illinois law does require railroad crews to keep a proper lookout for individuals in the vicinity of the tracks, particularly in populated areas and often-travelled crossings. Shine v. Wabash R.R., 8 Ill.App.2d 521, 532, 132 N.E.2d 41, 46 (3d Dist.1956). Had Maves and Gust kept a proper lookout, Puckett contends, they would have seen Wanago near the crossing and stopped the train; their failure to keep a proper lookout, she continues, constitutes negligence. See id., 8 Ill.App.2d at 534, 132 N.E.2d at 47.

To support her claim (and, presumably, to demonstrate the existence of a genuine issue of material fact), Puckett argues that the train may have been traveling too fast for the existing weather conditions, making it more difficult for the crew to see Wanago and to stop the train in time. She also intimates that Maves and Gust simply failed to keep a proper lookout of the approaching tracks and crossing. Both these points, however, rely at bottom on the assumption that Wanago was in or adjacent to the crossing--where the locomotive light would have illuminated him--when the train was sufficiently distant from the crossing to be stopped in time. ¹ As the district court observed, "[t]here is no basis in the evidentiary record for this assumption, however." Memorandum Opinion and Order at 17, 1989 WL 55365 (May 12, 1989). None of the affidavits or depositions submitted by Puckett suggests that Wanago was near the tracks when the train was at a sufficient distance from the crossing to be stopped in time. And Puckett's reliance upon the allegations contained in her complaint to create genuine issues of material fact is wholly misplaced. Fed.R.Civ.P. 56(e) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."); see Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Getman v. Indiana Harbor Belt R.R., 172 Ill.App.3d 297, 299, 122 Ill.Dec. 298, 300, 526 N.E.2d 557, 559 (1st Dist.1988). As a result, we believe that the district court properly granted the defendants' motion for summary judgment with respect to this part of Puckett's case.

B. Failure to Sound the Whistle or Horn

That the crew may not have seen Wanago in time to stop the train, however, does not necessarily mean that the crew did not see Wanago in time to signal the train's approach. ² In fact, the record suggests otherwise. When he first saw Wanago in the vicinity of the tracks, Gust said, he did not take any action because Wanago "wasn't bothering anything." Gust Dep. at 70. But as he watched, Gust noticed that Wanago never saw the approaching train; Gust also observed that Wanago wore a cap with ear flaps and thought that "maybe he didn't hear the train." ³ Id. at 125.

There is no question that Illinois law requires train personnel to signal a train's approach in certain situations: "It is the general rule of law that a railroad has no duty to keep a lookout for trespassers, but when persons are seen on or near the tracks in a place of danger, there is a duty to give them a signal." Higgins v. Baltimore & O.R.R., 16 Ill.App.2d 227, 230, 147 N.E.2d 714, 716 (4th Dist.1958). In granting the defendants' motion for summary judgment, Puckett contends, the district court failed to consider the defendants' obligation to provide an effective signal that would have alerted Wanago to the approaching train. The defendants counter on appeal that their action--the ringing of the train bell--was sufficient to comply with Illinois law. ⁴ And they point to one Illinois case stating that train personnel need not activate all the signals on the train to warn approaching pedestrians and motorists. Applegate v. Chicago & N.W. Ry., 334 Ill.App. 141, 148, 78 N.E.2d 793, 796 (2d Dist.1948) (crew may signal with bell or whistle).

Read in its entirety, however, Applegate is not entirely favorable to the defendants' position. The plaintiffs in Applegate sued the Chicago & North Western Railway Company (the "CNW") for its failure to give effective warning signals which, they argued, could have prevented the deaths of the passengers in a car struck by the train. In response, the CNW argued that it discharged its statutory duty by ringing the train bell and therefore could not be found liable for negligence. The court disagreed:

Irrespective of the statutory requirements, def...