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Churchill v. Norfolk & Western Ry. Co.





APPEAL from the Circuit Court of Sangamon County; the Hon. SIMON L. FRIEDMAN, Judge, presiding.


Plaintiff, Lois A. Churchill, as administrator of the estate of her husband, Paul Churchill, deceased, and individually, filed a complaint against the defendants, Norfolk and Western Railway, James R. Cravens, and Chrysler Motors Corporation (not here involved), for wrongful death of the decedent, Paul Churchill, and for other relief. The complaint related to the death of Paul Churchill while he was riding as a passenger in the front seat of the car owned and driven by defendant Cravens. The car stalled on the tracks of the defendant railroad and was struck by one of its trains. The driver of the automobile was able to get out of the car and escaped the scene prior to the collision. The decedent, Paul Churchill, was killed in the ensuing crash.

In order to have a clear understanding of the picture presented to the jury, it is necessary that each of the five counts of the complaint that went to the jury be set forth, at least in capsule form. In count I, plaintiff sued as administrator against the railroad. The count was based upon ordinary negligence. In count II, she sued as administrator against the defendant railroad, and the allegations related to wilful and wanton misconduct. In count V, the administrator sued Cravens for wilful and wanton misconduct. By the terms of count VII, plaintiff sued the railroad in her individual capacity to recover for the funeral expenses incurred by her (Ill. Rev. Stat. 1969, ch. 68, par. 15). In this count, she sought compensatory damages. By the terms of count VIII, plaintiff, individually, sued the railroad for compensatory and punitive damages, alleging that the railroad violated certain terms and conditions of the Public Utilities Act (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77), and rules of the Illinois Commerce Commission with reference to safety requirements.

The jury returned the following verdicts: on count I, the administrator as plaintiff against the railroad for negligence for compensatory damages, the jury returned a verdict of $45,000; on count II, the wilful and wanton count by the administrator against the railroad, a verdict was returned against the railroad and damages of $45,000 were fixed; on count V, there was a verdict for defendant Cravens; on count VII, the compensatory damages were fixed at $1,600 in favor of the plaintiff; on count VIII, the jury returned a verdict for $45,000 compensatory damages and $600,000 punitive damages. The trial court considered the various post-trial motions, and in a rather comprehensive memorandum opinion, allowed the verdicts under counts I, V and VII to stand, and no one appeals from the result on count V as to defendant Cravens. On counts II and VIII, the trial court entered judgments notwithstanding the verdict, and the plaintiff appeals that action. The defendant railroad appeals from the judgment entered against it and from the order denying its alternative motions for a new trial.

The factual circumstances giving rise to this lawsuit may be briefly summarized as follows. At around 7:20 p.m., March 17, 1970, Paul Churchill and James Cravens were returning to Dawson, Illinois, from the Sangamon County courthouse, where they had delivered some election materials. Both had served as election judges on that day. Cravens was driving his own 1969 Dodge Charger, and Churchill was riding in the front seat.

Cravens traveled U.S. Route 36 from Springfield and turned left off of Route 36 and proceeded north on Constant Street in the village of Dawson. Constant Street is one of the two streets in the village that crosses the three tracks of the defendant railroad. A passing track is nearest to Route 36; then comes the main-line track, and north of that is a track serving certain elevators located in the village of Dawson. The Constant Street crossing is protected by bells and flashing signals. As Cravens drove onto the tracks, he looked to his right and noticed a train approaching from the east. At about this same moment, the signal light started to work. Defendant Cravens had looked to the east before allowing his automobile to enter the railroad tracks, but his view down the track to the east was blocked by the defendant railroad's cars that were parked east of the Constant Street crossing and on the passing track. The west end of the westernmost, stored boxcar on the passing track was 414 feet east of the center line of the Constant Street crossing.

With this train approaching from the east, defendant Cravens' car stalled. He tried several times to start the car but was unsuccessful. The car had a standard transmission and Cravens tried to run it off the tracks by using the starter; this, too, was unsuccessful. He then yelled at his passenger, Paul Churchill, warning of the train and telling him to get out of the car. Cravens abandoned the automobile and ran back south of the main tracks. Just after his leaving, the car was struck by the train's engine and exploded into flames. Plaintiff's decedent, Paul Churchill, was killed in this collision and explosion.

As might be anticipated, there is a conflict in the testimony as to how far away the train was when it was first seen by Cravens. A State trooper, David Warnick, investigated the accident. This trooper testified that Cravens told him that he first saw the train when it was about 600 feet east of the Constant Street intersection. However, in an interrogatory propounded by the defendant railroad to Cravens, Cravens stated that the train was approximately at the next easternmost crossing when his car stalled on the track. This interrogatory was not read to the jury. There was testimony in this case that the next easternmost crossing in Dawson was about half a mile east of the Constant Street crossing. The trainmen operating the approaching train testified that they were traveling at approximately 60 miles per hour when they noticed the car was not going to make it across the intersection. The train then was put into an emergency stop situation, but it was not slowed appreciably when it collided with the stalled Cravens' automobile.

We need not detail all of the testimony, but it is fair to summarize by noting that the driver of an automobile that used the crossing prior to the approach of the Cravens' car testified he was traveling south on Constant Street; he crossed the track and stopped at the stop sign that precedes the entry onto Route 36. A car came, turned off of Route 36, turned north onto Constant Street. This was the Cravens automobile. At the time this car pulled off and turned onto Constant Street, the witness, David Squires, stated that he had not heard any flashers or bells or anything to indicate the presence of the train. He did not hear a whistle on the train. Glen Foster, the engineer on the train, testified that the diesel freight train was traveling 60 miles per hour, that the whistle of the train was sounded 900 feet from the crossing, and the engine bell was ringing. The engineer said he first saw Squires' car coming from the north and then the northbound car driven by defendant Cravens. He testified that he was 500 or 600 feet east of the Constant Street crossing when he saw the car of Cravens coming to a stop on the track. A fireman on the train, Charles Bagby, testified that the train was traveling 60 miles per hour with a whistle being sounded and the bell ringing as the train approached the crossing. The witness also testified that this was a point 500 to 600 feet east of the crossing.

The record is clear in this case that both by judicial decision and action by the village officials of Dawson and the school district that serves that village, the defendant Norfolk and Western Railway, and its predecessor corporation, Wabash Railroad, were repeatedly warned about the consequences of obstructing this particular crossing by parking the boxcars on the passing track on either the east or west side of the Constant Street crossing. (See Hughes v. Wabash R.R. Co. (1950), 342 Ill. App. 159, 95 N.E.2d 735; Rucker v. Wabash R.R. Co. (7th Cir. 1969), 418 F.2d 146.) There is in the record a letter under date of October 7, 1966, from the attorneys for the Tri-City Community Unit School District No. 1 of Sangamon County, advising the railroad, and particularly its superintendent, of the dangerous nature of the crossing, of the inability of the drivers of the school buses to see up and down the tracks without first bringing their school bus onto the track, and imploring the railroad to take prompt remedial action.

From this brief summary of the facts, we turn now to the consideration of the issues tendered by the plaintiff's appeal. She contends that the Wrongful Death Act is not an exclusive remedy and that it does not limit the statutory cause of action given by the Illinois Public Utilities Act, and that punitive damages are recoverable under that act, independent of the Wrongful Death Act (Ill. Rev. Stat. 1969, ch. 70, par. 1 et seq.), the Survival Act (Ill. Rev. Stat. 1969, ch. 3, par. 339), or section 15 of "An Act to revise the law in relation to husband and wife" (the family expense statute) (Ill. Rev. Stat. 1969, ch. 68, par. 15). The plaintiff also contends that the trial court erroneously concluded that a finding of negligence excluded a finding of wilful violation of the statute or wilful and wanton misconduct.

• 1 In the case of Baird v. Chicago, Burlington & Quincy R.R. Co. (1973), 11 Ill. App.3d 264, 296 N.E.2d 365, this court held that a claim for punitive damages made under a provision of the Public Utilities Act by an administrator in conjunction with a wrongful death action could not succeed. Language of this court in the Baird case was to the effect that the wrongful death statute was in derogation of the common law, was to be strictly construed, and that a plaintiff under that act could only recover compensatory damages. We there stated that even assuming a wilful violation of a safety rule of the Commerce Commission by the defendant railroad, section 73 of the Public Utilities Act (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77) does not engraft itself upon the Wrongful Death Act and give to the personal representative an additional measure or criteria for damages, nor does it create a cause of action for punitive damages.

Subsequent to our opinion in Baird, the Illinois Supreme Court rendered its decision in the case of Murphy v. Martin Oil Co. (1974), 56 Ill.2d 423, 308 N.E.2d 583. That opinion raises serious questions as to the continued validity of the doctrines espoused in our opinion in Baird. In Murphy, the plaintiff's decedent was severely injured in an explosion in a gas station. Nine days following the explosion, he died from the injuries received in the explosion. His wife, as administrator, instituted an action against the Martin Oil Company, and in count I claimed damages for wrongful death, and in count II asked for damages for the decedent's pain and suffering, loss of wages, and for loss relating to the clothing worn at the time of the injury. The damages asked in count II were based upon a common law cause of action and under the Illinois Survival Act. In Murphy, our supreme court expressly overruled the early Illinois case of Holton v. Daly (1882), 106 Ill. 131, and expressly held that the plaintiff could recover for the decedent's pain and suffering during the interval between injury and death as well as for the pecuniary loss. The court said:

"The remedy available under Holton will often be grievously incomplete. There may be a substantial loss of earnings, medical expenses, prolonged pain and suffering, as well as property damage sustained, before an injured person may succumb to his injuries. To say that there can be recovery only for his wrongful death is to provide an obviously inadequate justice. Too, the result in such a case is that the wrongdoer will have to answer for only a portion of the damages he caused. Incongruously, if the injury caused is so severe that death results, the wrongdoer's liability for the damages before death will be extinguished. It is obvious that in order to have a full liability and a full recovery there must be an action allowed for damages up to the time of death, as well as thereafter. Considering `It is more important that the court should be right upon later and more elaborate consideration of the cases than consistent with previous declarations' (Barden v. Northern Pacific R.R. Co. (1894), 154 U.S. 288, 322, 38 L.Ed. 992, 1000), we declare Holton and the cases which have followed it overruled. What this court observed in Molitor v. Kaneland Community Unit Dist. No. 302 (1959), 18 Ill.2d 11, 26, 163 N.E.2d 89, 96, may appropriately be said again:

`We have repeatedly held that the doctrine of stare decisis is not an inflexible rule requiring this court to blindly follow precedents and adhere to prior decisions, and that when it appears that public policy and social needs require a departure from prior decisions, it is our duty as a court of last resort to overrule those decisions and establish a rule consonant with our present day concepts of right and justice. (Bradley v. Fox, 7 Ill.2d 106, 111; Nudd v. Matsoukas, 7 ...

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