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Barthel v. Ill. Cent. Gulf R.r. Co.

OPINION FILED NOVEMBER 22, 1978.

DAVID BARTHEL ET AL., APPELLANTS,

v.

ILLINOIS CENTRAL GULF RAILROAD COMPANY, APPELLEE.



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

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 25, 1979.

This action resulted from a collision between an automobile and an Illinois Central Gulf Railroad Company freight train in Springfield at about 3:15 a.m. on November 22, 1969. The automobile crashed into a boxcar that was moving slowly over a railroad crossing. The driver, Robert Crifasi, was killed, as were two of his passengers, Frank Robinson and John Wallace. The other passengers, David Barthel, Scott West and Herbert Rigney, suffered injuries. In the ensuing actions in the circuit court of Sangamon County, which were consolidated for trial, Crifasi's administrator sued the railroad, while the surviving passengers and the administrators of the estates of the deceased passengers sued the railroad and Crifasi's administrator. The case was tried to a jury on counts of negligence and wilful and wanton misconduct. The jury returned verdicts against Crifasi's administrator in favor of the surviving passengers and the administrators of the deceased passengers' estates; verdicts were also returned in favor of the railroad against all plaintiffs. None of the judgments entered on these verdicts was appealed.

All plaintiffs except Crifasi's administrator, however, appealed the pretrial dismissal of additional counts bottomed upon alleged violations by the railroad of section 73 of the Public Utilities Act (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77) and praying for both compensatory and punitive damages. The trial court dismissed these counts because they failed to allege due care on the part of the plaintiffs or plaintiffs' decedents, and plaintiffs elected to stand on their complaints. In the appellate court plaintiffs argued strenuously that contributory negligence was not a bar to recovery under section 73 of the Public Utilities Act and therefore their complaints were sufficient without allegations of due care. The appellate court, however, held that contributory negligence was a defense to an action brought under the statute and affirmed the trial court judgment. (55 Ill. App.3d 816.) We allowed leave to appeal.

Section 73 of the Public Utilities Act (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77) (which remains in effect with some changes in language not pertinent here) provided:

"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."

Relying on this provision, plaintiffs alleged three statutory violations: failure to maintain a crossing in a safe condition (Ill. Rev. Stat. 1969, ch. 114, par. 62), failure to ring a bell when approaching a crossing (Ill. Rev. Stat. 1969, ch. 114, par. 59), and failure to use a headlight on a locomotive (Ill. Rev. Stat. 1969, ch. 114, par. 187). Plaintiffs also alleged violations of four Illinois Commerce Commission (ICC) rules implementing the Public Utilities Act: failure to maintain a crossing in a safe condition (ICC General Order No. 138, Rule 206), failure to maintain signs in a state of efficiency (ICC General Order No. 138, Rule 208), and failure to operate an automatic flashing light signal to give warning of a train's passage (ICC General Order No. 138, Rules 342 and 344).

Although section 73 of the Public Utilities Act will support an action for personal injuries resulting from a violation of ICC rules (Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill.2d 127, 140), we do not believe that complaints alleging the statutory violations above noted are cognizable under section 73 of the Public Utilities Act. Plaintiffs do not deny that actions merely alleging these violations are liable to the defense of contributory negligence. (Peltz v. Chicago Transit Authority (1975), 31 Ill. App.3d 948, 952; Sample v. Chicago, Burlington & Quincy R.R. Co. (1908), 233 Ill. 564, 566-67; Spikings v. Wabash R. Co. (7th Cir. 1953), 201 F.2d 492, 498.) Plaintiffs, however, point to the words "any act, matter or thing prohibited, forbidden or declared to be unlawful" in section 73, and they argue that this language includes violations of statutes other than the Public Utilities Act. Plaintiffs therefore contend that the statutory violations alleged are actionable under section 73 and that contributory negligence is not a defense when the action is cast in this form. The initial flaw in this reasoning is that plaintiffs have taken the quoted language out of context. The essence of the statutory provision is: "In case any public utility shall do * * * any act * * * prohibited * * * or shall omit to do any act * * * required * * * either by any provisions of this Act or any rule * * * of the Commission, issued under authority of this Act, such public utility shall be liable * * *." (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77.) Thus by the plain language of the statute only violations of the Act or of ICC rules implementing the Act are actionable under section 73.

We need not address the question whether the administrators of the estates of the deceased passengers may bring death actions under section 73 alleging violations of ICC rules. The principal issue — whether contributory negligence is a defense in a section 73 action — is also raised by the surviving passenger plaintiffs. Its discussion by us should not be construed as indicating any opinion as to the standing of the administrator plaintiffs to raise the issue.

Ordinarily a defendant's violation of a statute designed to protect human life or property is prima facie evidence of negligence. (Davis v. Marathon Oil Co. (1976), 64 Ill.2d 380, 390.) In order to recover, a plaintiff must show that the violation proximately caused his injury and that the statute was intended to protect a class to which he belongs from the kind of injury that he suffered. (Ney v. Yellow Cab Co. (1954), 2 Ill.2d 74, 76-79.) Since the violation is only prima facie evidence of negligence, defendant may prevail by showing that he acted reasonably under the circumstances. (Johnson v. Pendergast (1923), 308 Ill. 255, 262-65.) Furthermore, contributory negligence or assumption of the risk will bar recovery unless the statute provides that these defenses are not available. Jenkins v. Chicago & Eastern Illinois R.R. Co. (1972), 5 Ill. App.3d 954, 964; Browne v. Siegel, Cooper & Co. (1901), 191 Ill. 226, 233.

Section 73 of the Public Utilities Act, however, differs from the ordinary statute in that it expressly creates a cause of action. The provision declares unequivocally that a utility which violates the Act or implementing regulations shall be liable in damages for resulting injuries. Plaintiffs assert that this language is conclusive on the issue of contributory negligence. They argue that the cause of action, being a creature of the statute, bears no relation to the common law concepts of negligence and contributory negligence, and they conclude that since the statute does not provide that contributory negligence shall be a defense, it imposes strict liability on the utility for any violation. We agree with plaintiffs that the statutory provision is incompatible with the ordinary rule that violation of a statute is merely prima facie evidence of negligence. We do not agree, however, that the statute imposes strict liability on public utilities.

The rule in Illinois is that statutes in derogation of the common law are to be strictly construed in favor of persons sought to be subjected to their operation. The courts will read nothing into such statutes by intendment or implication. (Summers v. Summers (1968), 40 Ill.2d 338, 342; Anderson v. Board of Education (1945), 390 Ill. 412, 422.) This court has held that the Public Utility Act is in derogation of the common law. (Consumers Sanitary Coffee & Butter Stores v. Commerce Com. ex rel. Commonwealth Edison Co. (1932), 348 Ill. 615, 618.) Section 73 is plainly in derogation of the common law because it prevents a defendant who has violated the Act from avoiding liability by showing that he exercised due care under the circumstances. Since the statute is in derogation of the common law, this court will not abrogate the common law defense of contributory negligence unless it plainly appears that the intent of the statute is to impose strict liability.

The courts have found a legislative intent to impose strict liability in several Illinois statutes, such as the Dramshop Act (Ill. Rev. Stat. 1977, ch. 43, par. 94 et seq.), the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60 et seq.), the Coal Mining Act (Ill. Rev. Stat. 1977, ch. 96 1/2, par. 251 et seq.), and the Child Labor Law (Ill. Rev. Stat. 1977, ch. 48, par. 31.1 et seq.). The rationale for reading strict liability into these statutes, however, rests on grounds of social policy inapplicable to the Public Utilities Act. The Restatement (Second) of Torts, after ...


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