Young v. Toledo, P. & W. R. Co.

• Citation: 360 N.E.2d 978,46 Ill.App.3d 167,4 Ill.Dec. 715
• Decision Date: 28 February 1977
• Docket Number: No. 76--349,76--349
• Parties: , 4 Ill.Dec. 715 Harvey R. YOUNG, Plaintiff-Appellant, v. TOLEDO, PEORIA AND WESTERN RAILROAD COMPANY, a corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 978

360 N.E.2d 978

46 Ill.App.3d 167, 4 Ill.Dec. 715

Harvey R. YOUNG, Plaintiff-Appellant, v. TOLEDO, PEORIA AND WESTERN RAILROAD COMPANY, a corporation Defendant-Appellee.

No. 76--349.

Appellate Court of Illinois, Third District.

Feb. 28, 1977.

Dwight W. McGrew, Fleming & McGrew, Watseka, for plaintiff-appellant.

Jack Cassidy, Jr., Cassidy, Cassidy & Mueller, Peoria, for defendant-appellee.

STENGEL, Presiding Justice:

This is an action by plaintiff, a volunteer fireman from Cissna Park, to recover damages for personal injuries suffered during a fire that occurred after the derailment of a train operated by defendant Toledo, Peoria and Western Railroad. Plaintiff was summoned to the Crescent City, Illinois, fire and was injured by an explosion of tank cars carrying liquified petroleum gas. The trial court granted defendant's motion to dismiss the amended complaint for failure to state a cause of action, and plaintiff appeals. At the time of the explosion the plaintiff was not upon the property of defendant, and claims not to have been actively engaged in fighting or attempting to control the fire or explosion.

The record shows that on June 21, 1970, numerous railroad cars derailed as a train operated by defendant passed through Crescent City. Thirteen of the cars were tank cars containing LP gas, some of which began to burn and explode. The issue on review is whether the plaintiff has a legal right to recover damages for negligence or wilful and wanton misconduct on the part of the owner of the train.

Plaintiff's amended complaint contained four counts, and we are particularly concerned with Count IV alleging wilful and wanton misconduct. A similar suit arising out of this same calamity appears in Erickson v. Toledo, P. & W. Railroad (1st Dist.1974), 21 Ill.App.3d 546, 315 N.E.2d 912, and this court considered virtually the same issues in Marquart v. Toledo, P. & W. Railroad (3d Dist.1975), 30 Ill.App.3d 431, 333 N.E.2d 558. The latter case involved an appeal from the denial of the railroad's motion for summary judgment, and we held that the evidence was insufficient to support the allegations of wilful and wanton misconduct. Here we have an issue involving only the pleadings. In both the Erickson and Marquart cases the plaintiffs were specifically engaged in fighting the fires by either directing streams of water on the tank cars or in attempting to remove the burning cars. Here, we find the plaintiff was not on the defendant's property but was merely at the scene to extinguish fires that might erupt on properties along the defendant's right-of-way.

The plaintiff relies heavily on the decision in Dini v. Naiditch, (1960), 21 Ill.2d 406, 170 N.E.2d 881. In that case the plaintiffs filed a motion to amend their complaint to include a cause of action for wilful and wanton misconduct in addition to causes grounded on negligence and statutory violations. The motion was denied, and the Illinois Supreme Court reversed. Dini did not recognize liability on the part of the landowner for negligence in Causing a fire, but rather, as the court stated, liability attaches for a lack of care in the maintenance of the property which results in injury to the fireman.

Plaintiff's contention that the fire was caused by a failure of the defendant to discover a 'hot box' some ten miles before the train entered Crescent City is an attempt to predicate liability upon the negligent creation of a fire. The allegations in Count IV refer to acts of negligence which could be contributory causes of the fire, and relate only to the manner in which the fire was caused, and thus falls short of stating a cause of action on wilful and wanton misconduct. Since Dini, this position has been taken by other States, and several other cases have held that a fireman cannot predicate a personal injury action solely on another's negligence in causing a fire. In Netherton v. Arends, 81 Ill.App.2d 391, 225 ...