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Nat'l Bank v. Norfolk & Western Ry. Co.

OPINION FILED OCTOBER 6, 1978.

THE NATIONAL BANK OF BLOOMINGTON, ADM'R, ET AL., APPELLEES,

v.

NORFOLK & WESTERN RAILWAY COMPANY ET AL., APPELLANTS.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of McLean County, the Hon. Keith E. Campbell, Judge, presiding.

MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 1, 1978.

On January 5, 1970, in Bloomington, an auto operated by the decedent, Ray Weldon Groves, was struck by a freight train operated by Norfolk & Western Railway Company. Groves died seven days later as a result of the collision. While a four-count amended complaint was filed in the circuit court of McLean County, against additional defendants, we are here concerned only with counts I, II and IV, which went to the jury, and with defendants Norfolk & Western Railway Company and Wabash Railroad Company (hereafter referred to in the singular as defendant).

Counts I and IV were brought by the administrator of decedent's estate, the National Bank of Bloomington (plaintiff-administrator), and count II was brought by the decedent's widow, Marie Booe Groves, individually (plaintiff-wife).

Count I charged that defendant's negligent failure to provide adequate warning devices for motor vehicles at the instant railroad crossing and its negligent violation of rules of General Order No. 138 of the Illinois Commerce Commission (ICC) caused the wrongful death of decedent. Plaintiff-administrator sought pecuniary damages under the Wrongful Death Act (Ill. Rev. Stat. 1969, ch. 70, pars. 1, 2). Count II incorporated the allegations of count I, and alleged that, as a result of defendant's negligence, plaintiff-wife became liable under the family expense act (Ill. Rev. Stat. 1969, ch. 68, par. 15) for certain medical, hospital and funeral expenses for which she sought compensatory damages. Count IV charged defendant with the wilful violation of General Order No. 138, Rule 205 of the ICC, by its failure to keep its right-of-way clear of obstructions. Plaintiff-administrator sought both actual and punitive damages under the Public Utilities Act (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77). While one paragraph of count IV recites that the action was brought under both the Public Utilities Act and the Wrongful Death Act, the pleadings in the body of the count allege violation of the Public Utilities Act.

The jury's verdict awarded $20,000 pecuniary damages under count I for the wrongful death of the decedent; $4,348.60 compensatory damages under count II for medical, funeral and related expenses; and $300,000 punitive damages under count IV for the wilful violation of Rule 205 of General Order No. 138 of the ICC. The circuit court entered judgment for the defendant, notwithstanding the verdict, as to the $300,000 punitive damages. Plaintiff-administrator appealed the judgment n.o.v. that vacated the award for punitive damages under count IV. Defendant appealed from the two judgments entered against it under counts I and II.

The appellate court affirmed the judgments entered under counts I and II, but a majority of that court reversed the circuit court's judgment for defendant, n.o.v., on the question of punitive damages and reinstated the award of $300,000. (46 Ill. App.3d 757.) The appellate court unanimously issued a certificate of importance to this court in this case and in a companion case, Churchill v. Norfolk & Western Ry. Co. (1977), 46 Ill. App.3d 781, aff'd (1978), 73 Ill.2d 127.

Defendant claims that the decedent was guilty of contributory negligence as a matter of law; that section 73 of the Public Utilities Act (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77) does not create a cause of action in a personal representative for compensatory or punitive damages in a death case; that defendant did not violate Rule 205 and was not, therefore, guilty of wilful misconduct which would entitle plaintiff-administrator to recover punitive damages under section 73 of the Public Utilities Act; and that the award of $300,000 punitive damages was excessive.

Defendant's assertion that the decedent was contributorially negligent rests upon the following evidentiary facts. The decedent was 73 years old, a careful driver, and in good health on the day of the collision. He had traversed the railroad crossing in question on numerous occasions so that he was aware that trees, shrubbery and a house obstructed clear visibility of the railroad tracks to the north when approaching the crossing from the east. Site-line measurements to the north along the railroad tracks, taken by defendant from various points east of the crossing, indicated that from zero to 10 feet to the east of the crossing, one can see a quarter of a mile down the tracks; from 20 feet, one can see 450 feet; from 30 feet, one can see only 110 feet; from 40 feet, one can see only 85 feet; from 50 feet, one can see 80 feet; and from 100 feet, one can see 60 feet. The crossing itself was not equipped with any warning device other than the traditional crossbuck sign, stating "Railroad Crossing."

The decedent was traveling west at 20 to 35 miles per hour on a street which had a posted speed limit of 30 miles per hour. The only person who testified that he saw the decedent's vehicle immediately before impact was a trainman seated on the east side of the moving train. The trainman testified that he observed the car for less than a total of one second: a split second before the car disappeared behind the obstructing house and a split second when it emerged on the other side. The train was moving at a speed of 22 to 35 miles per hour as it approached the crossing. Its whistle had been blowing from the time the train was approximately 1,500 feet north of the crossing. Its light was on and its bell was ringing. The windows of the train and the windows of decedent's vehicle were closed due to the cold weather. Snow was on the ground and the pavement was slippery. Evidence indicated that neither the train nor the decedent braked prior to impact and that the decedent did not see or hear the train approaching although he did look both ways. Evidence further established that the front of the decedent's vehicle and the front of the train collided.

In answer to a special interrogatory, the jury specifically found that the decedent was not guilty of contributory negligence. Under the familiar Pedrick standard, the finding in this case may be overturned only if all the evidence, when viewed in its aspect most favorable to plaintiffs, so overwhelmingly favors defendant that no finding of the decedent's freedom from contributory negligence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510.

It is well established that railroad crossings are dangerous, and that in approaching them a person is required to diligently use the senses of sight and hearing and to exercise a degree of care commensurate with the known danger. (Tucker v. New York, Chicago & St. Louis R.R. Co. (1957), 12 Ill.2d 532, 535; Moudy v. New York, Chicago & St. Louis R.R. Co. (1944), 385 Ill. 446, 452.) The law casts disfavor on the person who claims that upon approaching an unobstructed crossing he looked but did not see an oncoming train. However, the law readily acknowledges that if a crossing is obstructed, a person, diligently using the senses of sight and hearing and exercising the ordinary care expected under the circumstances, might be excused for failing to perceive that the train was approaching. (Tucker v. New York, Chicago & St. Louis R.R. Co. (1957), 12 Ill.2d 532, 536.) A person is not required to come to a complete stop before traversing an obstructed crossing, nor is he required to keep a continuous lookout in the direction from which a train may be coming. (Chicago & Alton R.R. Co. v. Sanders (1894), 55 Ill. App. 87, 91, aff'd (1895), 154 Ill. 531; Baker v. Norfolk & Western Ry. Co. (1970), 120 Ill. App.2d 296, 310, quoting Hughes v. Wabash R.R. Co. (1950), 342 Ill. App. 159, 167.) Generally, in those cases in which a crossing is obscured, whether a plaintiff exercised due care and whether the obstruction prevented the plaintiff from perceiving an oncoming train are questions of fact for the jury and not matters of law which would require the court to intervene. Humbert v. Lowden (1944), 385 Ill. 437, 445; Gray v. Terminal Railroad Association (1962), 37 Ill. App.2d 376, 379.

In the case at bar, it is conceded that the crossing was obstructed by trees, shrubbery and a house. Evidence indicated that the decedent looked both ways, but that he did not see or hear the train approaching from the north. The trainman, who was on the train and looking in the direction of the decedent's vehicle, testified that he saw the decedent's car for a total of less than one second. We conclude, when viewing this and all the other evidence in a light most favorable to plaintiffs, that the jury could reasonably have found the decedent was exercising care for his own safety. The jury's special finding that the decedent was not contributorially negligent must, therefore, remain undisturbed.

Defendant next contends that section 73 of the Public Utilities Act does not create a cause of action in a personal representative for compensatory or punitive damages in a death case. Defendant's contention actually combines two distinct propositions: first, that section 73 of the Public Utilities Act does not create a cause of action in a personal representative for compensatory and punitive damages for the wrongful death of decedent, and, second, that the Act does not create a cause of action in a personal representative for compensatory and punitive damages for the predeath injuries to the decedent. We need not address the first proposition since, in count I, plaintiff-administrator recovered damages for the death of decedent under the Wrongful Death Act, and since, in count IV, plaintiff-administrator does not seek damages for wrongful death. As to the second proposition, however, we hold that plaintiff-administrator may recover compensatory and punitive damages under the Public Utilities Act on the basis of the injuries decedent sustained prior to his death.

Plaintiff-administrator alleged in count IV that the decedent received extremely serious injuries which, before he died, required his hospitalization and the administration of medical services. Evidence at trial established that the decedent was conscious but in a state of shock during the seven days between his injury and his death. The jury was instructed on the questions to be resolved under count IV: Was the decedent injured and killed as a result of defendant's violation of the ICC rule? Was defendant's violation wilful? Was the decedent free from contributory wilful and wanton conduct? Did the decedent sustain damages to the extent claimed? On this count, the court further instructed the jury that the plaintiff-administrator had the burden of proving that the decedent was free from contributory wilful and wanton conduct, that defendant wilfully violated the ICC rule and that the wilful violation was a proximate cause of the decedent's injuries and death. At defendant's request, special interrogatories were submitted to the jury on the questions of defendant's wilful and knowing violation of the ICC rule and of the decedent's contributory wilful and wanton conduct. The jury answered the special ...


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