APPEAL from the Circuit Court of Rock Island County; the Hon.
JOSEPH G. CARPENTIER, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
This is an appeal by Bureau Service Company and Edwin Gallagher, individually, and as administrator of the estate of James Gallagher, deceased, from a determination in the trial court adversely to their counterclaim against Burlington Northern, Inc., and National Railroad Passenger Corporation (Amtrak).
This case concerns a collision between a four-car Burlington Northern-Amtrak passenger train and a Bureau Service Company fuel truck at a rural railroad crossing in Bureau County, Illinois. Dennis C. Tripp, the fireman on the passenger train, and James Gallagher, the driver of the fuel truck, died from injuries sustained in the accident. Plaintiff Nita J. Tripp, the widow of fireman Dennis C. Tripp, commenced suit in the Circuit Court of Rock Island County against defendants Bureau Service Company and Edwin Gallagher, individually and as administrator of the estate of James Gallagher. Defendants Bureau Service and Gallagher counterclaimed against Tripp and filed a third-party complaint against Burlington Northern, Inc., and National Railroad Passenger Corporation (Amtrak) for wrongful death and property damage. Following a lengthy trial, the jury returned verdicts in the Circuit Court of Rock Island County finding in favor of plaintiff Tripp on her claim against defendants Bureau Service and Gallagher in the sum of $359,344, and finding in favor of Tripp, Burlington and Amtrak on Bureau Service's and Gallagher's counter and third-party claims. The jury additionally found, in answers to special interrogatories, that decedent Gallagher was guilty of negligence contributing to the cause of the collision and that decedent Tripp was not guilty of negligence contributing to the accident.
Tripp, Bureau Service, and Gallagher settled all claims between them, including the judgment entered in favor of Tripp and against Bureau Service and Gallagher. In this court, on appeal solely with respect to their third-party claim against Burlington and Amtrak, Bureau Service and Gallagher argue that (1) the issue of decedent Gallagher's contributory negligence was not fairly presented to the jury, (2) the issue of decedent Tripp's and defendants Burlington's and Amtrak's negligence was not fairly presented to the jury, and (3) the trial court erred in directing verdicts in favor of Burlington and Amtrak on the issues of Burlington's and Amtrak's alleged willful and wanton conduct and violation of certain safety legislation.
It is noted from the record that the accident giving rise to this action occurred at about 8:35 a.m. on September 20, 1972, when a Burlington Northern Zephyr passenger train collided with a Bureau Service gasoline truck at a rural crossing less than one mile northeast of Arlington, Illinois. The passenger train was being operated by engineer Robert Thorne and fireman Dennis Tripp, and the fuel truck was being operated by James Gallagher, while he was in the employ of Bureau Service. Dennis Tripp and James Gallagher died shortly after the accident as a result of injuries suffered in the occurrence. Engineer Robert Thorne was the only person available at the trial of this cause who witnessed the events immediately preceding the impact. It appears that Thorne has died since the trial in the circuit court.
The original action in this cause was brought by Nita J. Tripp, the widow of fireman Dennis C. Tripp (individually and as administrator of Dennis C. Tripp's estate), against Edwin Gallagher (individually and as administrator of James Gallagher's estate), and Bureau Service. Tripp's complaint sought damages for wrongful death, pain and suffering, and funeral and medical expenses. Gallagher and Bureau Service counterclaimed against Tripp and filed a third-party action against Burlington and Amtrak, asserting in both actions claims for wrongful death and property damage on theories of negligence, willful and wanton misconduct, and violations of certain safety statutes.
The evidence at trial established that the collision occurred at the crossing of the Burlington mainline tracks and a narrow gravel road in Bureau County, approximately one mile north of Arlington, Illinois. It appears that the east-west road was maintained by the township, and served a total of eight farms along its three- to four-mile length. The Burlington mainline consisted of two tracks which crossed the road at a 36° angle from the southwest to the northeast. The crossing of the mainline and the road was on a rise, and was approximately 24 feet wide. The crossing was marked with railroad crossbucks and with yellow and black railroad warning signs. While the crossing was not protected by automatic safeguards, evidence at trial indicated that there were numerous other angled crossings in Bureau County marked solely by crossbucks. It further appears that there was a rise in terrain approximately 850 feet southwest of the crossing.
Testimony from various local residents indicated that the standard method of approaching the crossing from the west was to stop the vehicle about 25 feet, or less, west of the crossing, and then lean forward and look to the right. By approaching the intersection in this manner, a driver would have few restrictions and a good view down the tracks for a distance of at least 2000 feet. It appears that if an eastbound driver stopped his vehicle significantly more than 25 feet west of the crossing, his view was partially blocked by the rise to the southwest of the crossing. The testimony of fuel truck drivers for Bureau Service established that the standard method of approaching the crossing while operating a fuel truck was to stop about 25 feet from the crossing so as to obtain a good view down the tracks.
It appears that sometime in the summer of 1972 James Gallagher expressed a desire to help his father, Edwin Gallagher, drive his fuel truck for Bureau Service. While James Gallagher had been a licensed driver for about three years, he had to obtain a class "C" driver's license in order to operate the fuel truck. James Gallagher had passed the test for his class "C" driver's license within the month preceding the accident, and had received his new license in the mail six days prior to the accident. Approximately two weeks before the occurrence Edwin Gallagher taught his son the above-described method of approaching the angled railroad crossing using the same truck which was involved in the collision. It seems that since the 1800-gallon tank on the gasoline truck obscured the view out the rear window of the truck, a proper approach was essential in order to safely traverse the angled railroad tracks.
On the day of the accident, Edwin Gallagher was away on a fishing trip when his wife received word at approximately 7:30 a.m. that a construction crew needed a fuel delivery. Mrs. Gallagher informed her son James who had returned home from his job at a restaurant shortly after midnight. James Gallagher then set out in his father's fuel truck, carrying 165 gallons of gasoline and 620 gallons of diesel fuel, to make the delivery at a location about three-quarters of a mile east of the crossing at which the accident occurred.
The train involved in the collision was a four-car Burlington-Amtrak passenger train with an ultimate destination in Chicago. The train had arrived in Galesburg at about 7:25 a.m., where a crew change had taken place. The crew taking the train out of Galesburg included engineer Robert Thorne, with 31 years experience, and fireman Dennis Tripp, with two years experience. The train was five minutes late in leaving Princeton, its last stop prior to the accident. The day in question was clear, with visibility of over two miles. Engineer Thorne testified that after leaving Galesburg he kept the speed of the train at 79 miles per hour, the speed limit set by the railroad for the area, with minor variations up and down due to terrain. The engine's dual headlight was on, and the record indicated that an oscillating Mars light was probably on as well.
Engineer Thorne testified at trial that after the train passed through Arlington and while it was still 3,000 feet from the crossing, he saw Gallagher's white fuel truck approaching the crossing from the west. Although the train had not yet reached the whistle post for the crossing, Thorne testified that he began to blow the engine whistle in the standard sequence as soon as he saw the truck. Thorne stated that he observed the truck come to a hesitation or rolling stop about 75 to 100 feet west of the crossing, and then continue on toward the crossing. When the truck kept coming, Thorne testified that he applied the emergency braking system at 60 to 70 feet from the crossing. The train could not be stopped short of the crossing, and the train struck the rear of the tank truck. The train finally stopped approximately 1/2-mile past the intersection.
Additional evidence at trial indicated that the railroad employed a speed tape recorder on the train, and that the recorder registered a speed of 82 miles per hour at the time of impact. It appears, further that physical peculiarities of the specific speed recorder could have caused this reading to be either high or low.
Following presentation of the evidence, the trial court directed a verdict in favor of Burlington and Amtrak on the third-party claims based on willful and wanton misconduct and violation of certain safety legislation. Following instruction by the trial court, the jury deliberated on the counts of Tripp's complaint and on the remaining (negligence) counts of the Gallagher and Bureau Service counterclaims and third-party claims. The jury returned verdicts finding in favor of Tripp on her claim against Gallagher and Bureau Service, and against Gallagher and Bureau Service on their counterclaim and third-party claim. In answers to special interrogatories, the jury found that James Gallagher had been guilty of negligence contributing to the cause of the collision, and that ...