APPEAL from the Circuit Court of Sangamon County; the Hon.
PAUL C. VERTICCHIO, Judge, presiding.
MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 31, 1978.
This case arises out of a collision between an automobile and a freight train of the Illinois Central Gulf Railroad Company in the City of Springfield on November 22, 1969, at approximately 3:15 a.m. The automobile was being driven by Robert Crifasi and contained five passengers: John Wallace, David Barthel, Scott West, Herbert Rigney and Frank Robinson. Robert Crifasi, the driver, Frank Robinson and John Wallace, passengers, were killed in the accident. The other passengers suffered injuries.
A variety of lawsuits ensued. Crifasi's administrator sued the railroad. The surviving passengers and the administrators of the two deceased passengers sued the railroad and Crifasi's administrator. All suits were consolidated for trial. For convenience and clarity in this opinion, the surviving passengers and the administrators of the deceased passengers will be referred to as "plaintiffs" and the defendant Illinois Central Gulf Railroad Company as "defendant."
A two-week jury trial was had and the jury returned verdicts in favor of plaintiffs and against driver-Crifasi's administrator in varying amounts. These verdicts are not in question in this appeal. The jury likewise returned a verdict in favor of defendant and against Crifasi's administrator and this verdict is not in question here.
What is in question here is the action of the trial court in dismissing before trial certain additional counts in their complaints brought by plaintiffs against defendant. These counts were based on section 73 of the Public Utilities Act (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77) and were filed shortly before trial. Other counts in the complaints sounded in ordinary negligence and wilful and wanton misconduct.
Section 73 reads as follows:
"In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, such public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment." Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77.
Plaintiffs elected to stand on their amendments and the question has been properly preserved for review. The trial proceeded on negligence and wilful and wanton theories only with the results described above. In addition to those verdicts (not in issue here) the jury returned a verdict in favor of defendant and against plaintiffs on their negligence and wilful and wanton counts. According to the prayer in plaintiffs' brief, they do not seek a new trial on these counts.
The sole issue, then, before this court is the propriety of the trial court's action in striking the counts based on section 73. Plaintiffs have raised several other issues which we shall discuss briefly later on, but we believe that the view we take on this principal issue will be dispositive of them.
The trial court's fundamental reason for dismissing the section 73 counts was the absence of any allegation of due care or freedom from contributory wilful and wanton misconduct on the part of the plaintiffs. Plaintiffs' contention is that such an allegation is unnecessary since section 73 creates a statutory liability distinct from the common law and free from common law defenses.
The precise point has not been passed upon by the Illinois courts> so far as we have been able to determine. Two Illinois cases have dealt indirectly with the proposition and one Federal case has met it head on.
Milford Canning Co. v. Central Illinois Public Service Co. (1963), 39 Ill. App.2d 258, 188 N.E.2d 397, turned on the question of a jury instruction. Plaintiff had sued in one count on section 73 and the court gave what the appellate court called a "peremptory" instruction which in effect directed a verdict for the plaintiff if plaintiff proved a statutory violation which resulted in damage. The appellate court reversed, saying:
"[T]he instruction in question completely omits the requirement of proving due care, negligence and proximate cause and constitutes a complete departure from the allegations of plaintiff's complaint and the theory upon which the case was tried." ...