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Churchill v. Norfolk & Western Ry. Co.





Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Sangamon County, the Hon. Simon L. Friedman, Judge, presiding.


Rehearing denied December 1, 1978.

This action resulted from the death of Paul Churchill, who was a passenger in an automobile driven by James R. Cravens when the vehicle stalled on the tracks of the Norfolk & Western Railway, and was struck by one of its trains. Plaintiff, Lois A. Churchill, individually and as administrator of her husband's estate, filed an eight-count amended complaint against Norfolk & Western Railway, James R. Cravens, and Chrysler Motors Corporation. Only Lois A. Churchill (plaintiff) and Norfolk & Western Railway (defendant) are involved in this appeal.

Counts I, II, V, VII and VIII went to the jury. Counts I and II, alleging negligence and wilful and wanton misconduct, respectively, were brought by plaintiff as administrator against defendant under the Wrongful Death Act (Ill. Rev. Stat. 1969, ch. 70, par. 1 et seq.). In count V, plaintiff-administrator charged Cravens with wilful and wanton misconduct. Count VII was brought by plaintiff individually against defendant under the Public Utilities Act (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77), to recover $5,000 in hospital, medical and funeral expenses for which she became liable under the family expense act (Ill. Rev. Stat. 1969, ch. 68, par. 15). She alleged violations of the Public Utilities Act and Rule 205 of the Illinois Commerce Commission (ICC). In count VIII she repeated the allegations of count VII and sought, in addition to the hospital, medical and funeral expenses, $3 million in punitive damages for the wilful violation of the Public Utilities Act and the ICC rule.

The jury returned a verdict in favor of plaintiff-administrator for $45,000 under count I for negligence, and, by separate verdict, for $45,000 under count II for wilful and wanton misconduct. The jury's verdict on count V exonerated Cravens. On count VII, the jury fixed the amount of the compensatory damage award to plaintiff individually at $1,600. On count VIII, however, it fixed the verdict on compensatory damages at $45,000 and included an additional $600,000 in punitive damages. The trial court allowed the verdicts on counts I, V and VII to stand. It entered judgments for defendant, notwithstanding the verdicts, on counts II and VIII.

A majority of the appellate court affirmed in part and reversed in part. (46 Ill. App.3d 781.) It remanded the cause to the circuit court of Sangamon County with directions to enter a single judgment for $45,000 pecuniary damages on behalf of plaintiff as administrator, a judgment for plaintiff individually in the amount of $1,600 for funeral expenses, and a judgment for plaintiff individually for $600,000 in punitive damages.

On its own motion, the appellate court, pursuant to section 4(c) of article VI of the 1970 Illinois Constitution and Supreme Court Rule 316 (58 Ill.2d R. 316), issued a certificate of importance to this court in both this case and a companion case, National Bank of Bloomington v. Norfolk & Western Ry. Co. (1977), 46 Ill. App.3d 757, aff'd (1978), 73 Ill.2d 160.

Our recitation of the facts is limited to those which frame the issues before us.

At 7:20 p.m. on March 17, 1970, Paul Churchill was a passenger in the front seat of owner-operator Cravens' 1969 Dodge Charger. As Cravens' auto approached the Dawson, Illinois, railroad crossing (which was equipped with bells and flasher signals), Cravens looked to the east, but his view was obstructed by a line of defendant's boxcars stored on sidetracks at a distance beginning 414 feet east of the crossing. As Cravens drove onto the tracks, he noticed a train approaching from the east at 60 miles per hour. His car stalled and, about the same moment, the crossing's flasher signals began operating. Cravens made several unsuccessful attempts to start the car, placed the car in gear and tried to move the vehicle by using the starter, attempted to warn his passenger of the on-rushing train, and, finally, abandoned his car. Immediately thereafter, the train struck the car, which exploded into flames. Churchill was killed instantly. When his body was found, it was still secured in the car by the seat belt.

According to the testimony of a State trooper who investigated the accident, Cravens reported that the train was 600 feet to the east of the crossing when he first saw it. However, in response to defendant's interrogatory, Cravens stated that the train was approximately at the next crossing to the east (one-half mile away) when his car stalled on the tracks. This interrogatory was not read to the jury. Both the train's engineer and its fireman concurred that the car was 500 or 600 feet away when they first saw it on the tracks. The brakeman on the train testified that the car could be seen on the tracks for one-quarter to one-half mile prior to impact, but that it was not until the train was within 500 or 600 feet of the auto that the train crew realized the car was stalled.

Another auto, traveling in the opposite direction, crossed the tracks immediately prior to Cravens' auto. That driver testified that he heard no train whistle or bell to signal the approach of a train, and that the flasher lights were not operating when Cravens' car approached the crossing. The train engineer testified that the whistle was sounded when the train was 900 feet from the crossing and that the engine bell was ringing.

It was shown that the defendant had been repeatedly warned of the dangerous visual obstruction created by the boxcars being stored near the crossing. On numerous occasions and once by certified letter on October 7, 1966, a neighboring school district communicated to the defendant that its bus drivers could not see up and down the tracks before crossing. The mayor of Dawson testified that he had complained to defendant about the same obstructions. Upon receiving complaints, defendant temporarily rectified the situation but then resumed the dangerous storage practice.

Of the myriad issues presented, we first review that which prompted the appellate court to certify these companion cases: In an action arising from the accident-related death of a person injured, are both compensatory and punitive damages recoverable under section 73 of the Public Utilities Act?

Section 73 of the Public Utilities Act provides:

"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. An action to recover for such loss, damage or injury may be brought in any court of competent jurisdiction by any person or corporation." (Emphasis added.) (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77.)

Defendant was found to have violated Rule 205 of General Order 138 of the ICC. The rule requires a railroad to keep its right-of-way reasonably clear of unnecessary obstructions for a minimum of 500 feet from every grade crossing at which an obstruction would materially obscure approaching trains from the view of travelers on the highway.

Defendant initially seeks to dispose of the question by asserting that the statutory remedy in section 73 does not apply to personal injury actions. It contends that the Public Utilities Act is directed at regulating rates and services of public utilities, and that, consequently, section 73 is intended to provide a remedy only for such abuses as overcharging and preferential rates and not for safety violations at railroad crossings. We fail to find any substantiation whatsoever for this contention.

The Public Utilities Act, designed in part to promote public safety by public utilities, was originally enacted in 1913. (1913 Ill. Laws 459.) By 1925, this court had resolved that the Act directly sought to secure the public's protection at the intersections of streets and railroads. (Village of Atwood v. Cincinnati, Indianapolis & Western R.R. Co. (1925), 316 Ill. 425.) In 1937, the ICC, pursuant to its authority under the Act, adopted General Order 138. That general order specifically imposed rules, regulations and requirements "relating to construction, maintenance, marking and protection of crossings of Highways and Railroads." (See American National Bank & Trust Co. v. Pennsylvania R.R. Co. (1964), 52 Ill. App.2d 406, 429, 434.) The Seventh Circuit Court of Appeals has twice held that section 73 of the Public Utilities Act clearly provides a remedy for personal injuries which result from a violation of ICC rules concerning public safety at railroad crossings. (Lippincott v. Wabash R.R. Co. (7th Cir. 1961), 295 F.2d 577; Rucker v. Wabash R.R. Co. (7th Cir. 1969), 418 F.2d 146.) We are impelled by the twin forces of statutory clarity and judicial precedent to conclude that personal injury actions, arising out of the violation of the ICC's rules on public safety at railroad crossings, are cognizable under section 73 of the Public Utilities Act.

Defendant contends that even if section 73 of the Public Utilities Act recognizes a cause of action against a public utility for violations which result in personal injury, no cause of action exists when such violations result in death. We believe defendant has reached this anomalous conclusion by confusing plaintiff's causes of action under the Public Utilities Act (counts VII and VIII) with the wrongful death actions brought in counts I and II. The causes of action are separate and distinct.

Counts VII and VIII were brought by plaintiff in her own behalf, not as a representative of the decedent as would be true in a wrongful death action. Plaintiff, on the basis of the financial injury she personally incurred, sought both compensatory and punitive damages directly under the Public Utilities Act. In order to avoid confusion with the wrongful death counts, counts VII and VIII should be regarded as actions brought against the defendant, whose ...

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