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Merchants Nat. Bk. v. E.j. & E. Ry. Co.

OPINION FILED MAY 21, 1971.

MERCHANTS NATIONAL BANK OF AURORA, ADMR., APPELLEE,

v.

THE ELGIN, JOLIET & EASTERN RAILWAY COMPANY, ET AL., APPELLANTS.



APPEAL from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Kane County; the Hon. JOHN S. PETERSEN, Judge, presiding.

MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 4, 1971.

The circuit court of Kane County entered judgment upon a jury verdict in the amount of $250,000 in favor of plaintiff administrator of the estate of Harold E. Seckman, deceased, and against the Elgin, Joliet & Eastern Railway Company, hereafter called defendant, and Edward L. Sak, Jr., administrator of the estate of Marilyn J. Sak, deceased. Defendant railroad appealed and the Appellate Court for the Second District affirmed. (121 Ill. App.2d 445.) We allowed defendant's petition for leave to appeal.

The facts are accurately and adequately stated in the opinion of the appellate court. Plaintiff's decedent was riding as a passenger in a pickup truck being driven by Marilyn J. Sak in a westerly direction, and the truck collided with defendant's southbound freight train. The collision occurred at the point at which defendant's right-of-way intersects 143rd Street near Plainfield. Seckman was killed instantly and Mrs. Sak died shortly after the collision.

Defendant contends first that the trial court erred in permitting J. Carl McMonagle, called as an expert by plaintiff, to testify that in his opinion the crossing "is very inadequately protected." McMonagle's qualifications and testimony are adequately reviewed in the opinion of the appellate court and will not be repeated here. Defendant argues "it is reversible error to allow an expert witness to testify to the ultimate issue in a railroad crossing case where there are five eyewitnesses." It contends "that necessity is a sine qua non to allowing the expert to testify. In other words, experts should be precluded from testifying upon matters within the scope of the common knowledge and experience of mankind."

In support of this contention defendant cites Miller v. The Pillsbury Co., 33 Ill.2d 514; Plank v. Holman, 46 Ill.2d 465; and Abramson v. Levinson, 112 Ill. App.2d 42. These cases are clearly distinguishable. In Miller the expert testified to an opinion as to which vehicle was over the black line when two vehicles collided, in Plank the expert expressed an opinion that one vehicle was overtaking another and what its driver did upon perceiving that an oncoming vehicle was in close proximity, and in Abramson the expert, as shown by the offer of proof, intended to testify that in his opinion a vehicle involved in a collision was prior thereto headed in a northerly direction.

In Baran v. City of Chicago Heights, 43 Ill.2d 177, and Williams v. Brown Manufacturing Co., 45 Ill.2d 418, there were eyewitnesses to the occurrences and certainly there were eyewitnesses when Darling's leg was amputated. (Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326.) In those cases expert testimony was adduced that the lighting, the design, and standards of patient care, respectively, were not adequate. The obvious distinction between these cases and Miller, Plank and Abramson is that in the "reconstruction" cases what occurred was provable by eyewitnesses, and the rationale of the opinions is that there is no necessity for the testimony of a reconstruction expert if the facts determinative of the issues are proved by testimony of eyewitnesses. Unlike the "reconstruction" cases there is here no question as to what occurred; the issue to which the expert's testimony was directed is whether the crossing was adequately protected.

Defendant argues that the hazards of a railroad grade crossing and the protective or warning devices that should be used are within the common knowledge and understanding of the average person, are not difficult to comprehend or explain, and the expert testimony was unnecessary and prejudicial. Plaintiff, on the other hand, has directed our attention to technical publications (see e.g. Bruce, Highway Design & Construction, 3rd Ed. (1950) pp. 64 and 65; LeGault, Highway & Airport Engineering, Prentice Hall (1960) p. 128; Ritter and Paquette, Highway Engineering, 2d Ed. (1960) Ronald Press, pp. 163-166; Arno, Safety Evaluation of Rail-Highway Grade Crossings, Public Works 99:71 (Dec. 2, 1968)) to support its position that the hazards of a railroad grade crossing and the protective devices to be used are beyond the common knowledge and understanding of the average person.

In Mahlstedt v. Ideal Lighting Co., 271 Ill. 154, this court said at page 171: "Expert evidence is admissible when the witnesses offered as experts have peculiar knowledge or experience not common to the world, which renders their opinions founded on such knowledge or experience an aid to the court or jury in determining the question at issue. Expert testimony is proper when the subject matter of the inquiry is of such a character that only persons of skill or experience in it are capable of forming a correct judgment as to any fact connected therewith."

The Illinois Commerce Commission under section 58 of the Public Utilities Act (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 62) has the authority to designate those grade crossings which are deemed extra hazardous and order the number, type and location of protection devices to be used. The Commission with its staff experts will, in a hearing under section 58, receive expert testimony to aid it in determining the hazards of the crossing and the alteration, if any, to be made at the crossing. (See Galt v. Commerce Com., 28 Ill.2d 501, 504.) A jury in determining a question similar to the one to be decided by the Commerce Commission is entitled to the same aid and enlightenment an expert may provide and we so hold.

Relying upon Hughes v. Wabash RR. Co., 342 Ill. App. 159, defendant argues that the expert, in stating his opinion, testified to the ultimate issue in the case, thus invading the province of the jury. Opinions of this court however (Clifford-Jacobs Forging Co. v. Industrial Com., 19 Ill.2d 236; Miller v. The Pillsbury Co., 33 Ill.2d 514), make it clear that since the trier of fact is not required to accept the opinion of the expert, such evidence does not usurp the province of the jury.

Defendant's next contention involves the interpretation to be given section 8 of "An Act in relation to fencing and operating railroads". (Ill. Rev. Stat. 1969, ch. 114, par. 62.) This section provides: "Hereafter, at all of the railroad crossings of highways and streets in this state, the several railroad corporations in this state shall construct and maintain said crossings, and the approaches thereto, within their respective rights of way, so that at all times they shall be safe as to persons and property."

Defendant argues that the trial court committed reversible error in giving an instruction based on this statute because the statute deals only with the physical layout and composition of a crossing and not the warnings required at the crossing. The appellate court agreed with defendant's interpretation of the statute and its contention that the instruction was erroneous but held that the giving of the instruction was not reversible error.

In Chicago and Northwestern Ry. Co. v. City of Chicago, 140 Ill. 309, this court in discussing this statute said: "Section 8 recites, that the railroad companies shall construct and maintain the crossings, `so that at all times they shall be safe as to persons and property.' Safety of persons and property is the object of the requirement. * * * The testimony of the appellant in this case shows that the planking and the gates and the power-house which is used to operate the gates, are necessary for the safety of the public and to prevent accidents. The gates, no less than the grading and planking, are ...


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