Stromquist v. Burlington Northern, Inc.

• Decision Date: 06 January 1983
• Docket Number: No. 82-47,82-47
• Citation: 112 Ill.App.3d 37,67 Ill.Dec. 629,444 N.E.2d 1113
• Parties: , 67 Ill.Dec. 629 Malia Dawn STROMQUIST, Plaintiff-Appellee, v. BURLINGTON NORTHERN, INC., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1113

444 N.E.2d 1113

112 Ill.App.3d 37, 67 Ill.Dec. 629

Malia Dawn STROMQUIST, Plaintiff-Appellee, v. BURLINGTON NORTHERN, INC., Defendant-Appellant.

No. 82-47.

Appellate Court of Illinois Third District.

Jan. 6, 1983.

Kenneth J. Wysoglad, Thomas J. Knapp and Michael L. Sazdanoff, Chicago, for defendant-appellant.

Jerome Mirza, Jerome Mirza & Associates, Ltd., Bloomington, Braud, Warner, Neppl & Westensee, Ltd., Rock Island, for plaintiff-appellee.

SCOTT, Justice:

A car-train collision at a railroad crossing in Orion, Illinois, on January 29, 1977, gave rise to the instant lawsuit. The plaintiff, Malia Stromquist, the driver and sole occupant of the car, brought suit against the defendant railroad seeking recovery for injuries she incurred in the collision. Her complaint alleged two legal theories for recovery, one ordinary negligence and the other wilful and wanton conduct. A Henry County jury returned a verdict for the plaintiff under both theories, awarding $425,000 for compensatory damages and $100,000 for punitive damages. The railroad appeals from the verdict of the Henry County Circuit Court alleging numerous errors.

It appears from the record that the crossing in question, the 12th Avenue crossing, had been a source of concern in the Orion community for some time prior to January 29, 1977. During the ten year period immediately preceding the collision in question, five other mishaps had occurred at the same crossing. The crossing was equipped with cross buck signs as warning devices, and train speeds in Orion were limited to 30 miles per hour and the speed limit on 12th Avenue was 25 miles per hour. Nonetheless, the peculiar nature of visual obstructions at the 12th Avenue crossing, as noted on a visibility survey conducted in September of 1976, resulted in the sight distance existing in each quadrant of the crossing being less than the desired distance under the defendant's guideline. For this reason and others, village officials in Orion approached the railroad in the early 1970's seeking to have improved warning devices installed at the crossing. Specifically, the village sought to have the 12th Avenue crossing "signalized", with flashing lights and bell. According to the testimony of the village clerk, this request was agreed to by the railroad conditioned on the village's agreement not to oppose the removal of the 13th Avenue grade separation and the closing of the 10th Avenue crossing.

Again in 1975, in response to a fatal mishap at the subject crossing, village officials met with representatives of the railroad and the Illinois Commerce Commission. Again, the subject of the meetings was the signalization of the 12th Avenue crossing. And again, according to the village clerk, the railroad's position was that if the village pressed to have the 12th Avenue crossing signalized, then the railroad would seek to close the 10th Avenue crossing.

The same fatal collision generated other appeals to the railroad to take steps to improve the 12th Avenue crossing. A coroner's jury inquiring into the death recommended signalization of the railroad crossing. The president of the P.T.A. in the Orion school district wrote the railroad requesting flasher signals at 12th Avenue. After a period of no response, the P.T.A. orchestrated a letter writing effort to state legislator Clarence Neff, who contacted both the railroad and the Illinois Commerce Commission.

Finally, in August, 1976, the Village of Orion petitioned the Illinois Commerce Commission to signalize 12th Avenue. After the village's petition was filed, the railroad filed its counter-petition suggesting that 12th Avenue should be signalized and 10th Avenue should be closed. Hearings on the petitions began in November, 1976, and were concluded on January 25, 1977, just four days before the collision involving the plaintiff.

January 29, 1977, was a cold day in Orion, Illinois, with temperatures hovering around zero. A few days before snow had fallen on the village and the oil and chip surface of 12th Avenue was still snow packed. At approximately 4:40 p.m., the plaintiff was westbound on 12th Avenue, en route to a roller skating rink to pick up her sister and a cousin. While dusk was overtaking daylight it was not snowing and visibility was good.

As the southbound train approached Orion with three engines followed by sixty-six freight cars and a caboose, the engineer began to sound the engine's whistle and activated the automatic engine bell which rang continuously. As the train moved through Orion, the head brakeman was keeping a lookout for vehicles that would be approaching the track from the east, which was to his left as he faced the front of the engine, and the engineer was keeping a lookout toward the west, which was to his right as he faced the front of the engine. The brakeman first saw the plaintiff's car when it was 100 feet east of the crossing and the engine was 190 feet from the same point. The brakeman estimated the car's speed at 15 miles per hour, a speed it maintained without reduction as it approached the crossing. Realizing that the car was not stopping, the brakeman shouted to the engineer, who applied the train's emergency brakes. It was too late to avoid the impact.

The engine pushed the 1976 Dodge Colt to the south for a short distance, and then the auto came off the track, slid to the west and rolled into a ditch on the west side of the track. The plaintiff was thrown from the auto, receiving a severe blow to the head. When the engine came to a stop approximately 500 feet south of 12th Avenue, the head brakeman immediately headed back to the scene of the collision. As he approached plaintiff's car, he heard loud music coming from the speakers from the radio and tape player.

The plaintiff was unconscious at the scene, and after being taken to the hospital by ambulance, she remained there continuously for just over eight months. For the first two months, she was incapable of any voluntary movement except to follow individuals with her eyes. Fortunately, however, after extensive therapy and re-hospitalization for orthopedic surgery, the plaintiff was able to leave the hospital ambulatory and independent in her activities of daily living, though not without some degree of permanent impairment.

Presented this account of the collision and the events which preceded it, the Henry County Circuit Court jury returned a verdict for the plaintiff itemized as follows:

Nature extent and duration of the

                 injuries                          $238,000
                Disability                           38,000
                Past pain and suffering              30,000
                Future pain and suffering             8,000
                Medical expenses                     54,000
                Loss of earnings                      7,000
                Future loss of earnings              50,000
                

The jury also returned a general verdict for $100,000 in punitive damages against the defendant.

While the defendant raises numerous alleged errors with this appeal, several concern the award of punitive damages, whether that award was supported by the evidence, and whether certain evidence was properly admitted in support of that award. We note that our laws provide that irrespective of the orders or proceedings of the Illinois Commerce Commission, a railroad has a common law duty to provide adequate warning devices at its railroad crossings. (Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. [1970], 121 Ill.App.2d 445, 257 N.E.2d 216, aff'd [1971] 49 Ill.2d 118, 273 N.E.2d 809; Applegate v. Chicago & N.W. Ry. Co. [1948], 334 Ill.App. 141, 78 N.E.2d 793.) Further, where that duty is breached wilfully and in conscious disregard of the public safety, an award of punitive damages will lie. (Reiss v. Chicago, Milwaukee, St. Paul & Pacific R. Co. [1979], 77 Ill.App.3d 124, 32 Ill.Dec. 600, 395 N.E.2d 981.) Finally, where conscious and wilful conduct is asserted, despite earlier authority to the contrary, recent decisions allow into evidence various incidents which show notice to the railroad that crossing protection was inadequate. (First National Bank v. Ill. Cent. Gulf R. Co. [1978], 62 Ill.App.3d 36, 19 Ill.Dec. 454, 378 N.E.2d 1329.) With these points of law in mind, we consider the defendant's allegations of error.

Admitted into evidence was the testimony of the village clerk, the P.T.A. president, state legislator Neff, and the county coroner. The railroad urges that the testimony of each of these witnesses amounted to hearsay, non-expert opinion as to the adequacy of the warning devices at the 12th Avenue crossing. We believe the defendant incorrectly states the limited purpose for which this testimony was admitted. We understand that evidence of prior complaints and prior accidents is probative of the railroad's actual knowledge, and such evidence would be relevant in the jury's consideration of the wilfull and conscious nature of the defendant's conduct. (Mathis v. Burlington Northern, Inc. [1978], 67 Ill.App.3d 1009, 24 Ill.Dec. 639, 385 N.E.2d 780; First National Bank v. Ill. Cent. Gulf R. Co.) For this purpose and under these circumstances, we believe the circuit court correctly applied the recent case law in admitting testimony. We likewise find no error in admitting the coroner's testimony about his jury's recommendation; the proviso which limits admission of the coroner's verdict into civil proceedings, Illinois Revised Statutes 1981, chapter 31, paragraph 19, applies only to "said civil suit or proceeding" arising by reason of the death examined in the coroner's verdict.

Having determined that...