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Harvey v. Norfolk & Western Ry. Co.

OPINION FILED JUNE 15, 1979.

MARGARET HARVEY, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

NORFOLK AND WESTERN RAILWAY COMPANY, DEFENDANT-APPELLEE AND CROSS-APPELLANT.



APPEAL from the Circuit Court of Champaign County; the Hon. CREED D. TUCKER, Judge, presiding.

MR. PRESIDING JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:

This action resulted from injuries sustained by the plaintiff, Margaret Harvey, while a passenger in an automobile which stalled on the tracks of the Norfolk & Western Railway, and was struck by one of its trains. Plaintiff filed a complaint which was subsequently amended to include three counts. Count I charged defendant with negligence as to the maintenance of the crossing based on both the common law standard of negligence and the defendant's alleged violation of certain Illinois Commerce Commission (ICC) Rules. Count II sought recovery pursuant to section 73 of the Public Utilities Act (ll. Rev. Stat. 1975, ch. 111 2/3, par. 77) based upon defendant's alleged violation of specified ICC rules. Similarly, section 73 of the Act was the basis of count II which charged the defendant with wilfully violating these same ICC rules.

Following the close of the evidence and during the jury instruction conference, defendant moved to withdraw portions of count I and all of counts II and III from the consideration of the jury. The trial court granted that motion. The jury returned a verdict in favor of the plaintiff under count I for negligence and awarded her $7,500 compensatory damages. Plaintiff appealed from that verdict and judgment challenging, in addition to certain other rulings by the trial court, the propriety of the withdrawal of counts II and III from the jury.

The evidence disclosed that on August 7, 1975, at approximately 6:45 p.m, the plaintiff was a passenger in an automobile being driven by Anna Mettler which was proceeding in a northerly direction on Coler Avenue in Urbana, Illinois. As they approached the defendant's railroad crossing, which was marked by "crossbuck" signs, Mettler stopped the car a few feet from the southernmost rail and she and the plaintiff checked the crossing for an approaching train. Neither the plaintiff nor Mettler saw a train or heard a whistle and Mettler proceeded onto the crossing. As the vehicle passed over the first rail, which both witnesses described as very "bumpy" and "rough," the engine stalled. At approximately the same time, and as Mettler unsuccessfully attempted to restart the automobile, the two heard a train whistle and for the first time observed an eastbound train which was a short distance to the west of the crossing. Mettler immediately abandoned her automobile, but the plaintiff was unable to get out before the vehicle was struck by the train. The plaintiff was thrown from the car upon impact.

The defendant's railroad tracks which cross Coler Avenue run in a general northwest to southeast direction. Several witnesses gave descriptions of the foliage located in the area south of the defendant's track and west of Coler Avenue (the direction from which the train came). Mettler testified that various shrubs, weeds, bushes, and trees extended to a railroad signal box which was approximately 55 feet west of the crossing. This growth, which at certain points she estimated to be 10 to 12 feet high, had obstructed her view of the approaching train. The plaintiff's description of this area was substantially similar. By her account, this growth extended as far back as she could see from where the automobile was stopped at the crossing.

The plaintiff's son, Ed Harvey, Jr., also testified as to the various types of vegetation in this area. The area closest to the crossing and adjacent to the south track included high weeds and shrubs. Beyond this were woody-type plants 5 to 6 feet in height. Approximately 50 to 75 feet from the crossing were tree-type plants 10 to 12 feet high which grew directly adjacent to the tracks. He stated that in his opinion this area of growth had neither been sprayed nor cut back for some time, based upon the height of the foliage and the leafy nature of the brush and trees.

Thomas Berns, a civil engineer, was called by the plaintiff as an expert witness. In addition to offering his opinion that the crossing in question was more than ordinarily hazardous, Berns also gave testimony regarding certain ICC rules which had allegedly been violated by the defendant. Berns testified as to the factors that are relevant to ICC Rules 204 and 205 of General Order 138 as they applied to the crossing in question. The trial court, however, refused to permit him to testify that in his opinion the crossing violated those two rules.

Dr. Isaac Morhaim testified concerning the extent of the plaintiff's injuries. As a result of the accident, the plaintiff had sustained a broken fibula and her knees had become swollen. She also received various other lacerations and bruises. Prior to the accident, the plaintiff had suffered from degenerative osteoarthritis in both knees. According to Dr. Morhaim, the accident had aggravated her arthritic condition.

The brakeman on the train which struck Mettler's automobile testified that the train was moving at approximately 4 or 5 miles per hour as it approached the crossing. After the crew saw that the vehicle was stopped on the tracks, the braking system was activated. The brakeman stated that he thought the train was moving at about 2 or 3 miles per hour at the time of impact.

James Sparks, who was employed by the defendant as a roadmaster in charge of track maintenance, was called as a witness for the plaintiff. During the early summer of 1975, the railroad had hired an independent contractor to cut weeds and shrubs adjacent to its tracks. The territory designated for this maintenance encompassed the crossing at Coler Avenue. A short time after this work commenced, the weed mower to be used in this process broke down and further weed cutting efforts were abandoned. No inspections or spot-trimming were, thereafter, undertaken in those areas initially designated for maintenance. Several witnesses testified, without objection from defense counsel, that the trees and shrubs at the Coler crossing were cut down a short time after the accident.

As stated previously, at the close of the evidence, the defendant moved to withdraw portions of count I and all of counts II and III from the jury's consideration. We are concerned here only with the trial court's granting of that motion as it relates to counts II and III.

At trial, the defendant argued that count II failed to set forth a basis or theory of recovery different from that alleged in count I, the negligence count. In other words, it was the defendant's position that its alleged violations of ICC Rules 204, 205, and 206 could not afford a separate basis for recovery under section 73 of the Public Utilities Act. At most, it was asserted, these alleged violations might constitute some proof of negligence on the theory that the regulations evidence a standard of due care owed by the railroad. However, that was essentially the theory embodied in plaintiff's count I and, therefore, according to the defendant, there was no operative difference between counts I and II.

It was also argued by the defendant that count III should be withdrawn from the jury because under the Pedrick standard, a verdict finding the defendant guilty of wilfully violating the ICC rules could never stand. (See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.) The trial court accepted this argument and ordered count III withdrawn from jury consideration.

During the jury instruction conference but after the court had granted defendant's motion as to counts II and III, plaintiff tendered a special interrogatory. The interrogatory read as follows, "Did the defendant violate one or more rules of the Illinois Commerce Commission, which violation was a proximate cause of the occurrence in which Margaret Harvey was injured * * *?" Plaintiff at the same time moved that attorney's fees be awarded if, in response to this special interrogatory, the jury found that the defendant violated specified ICC rules in a manner causing her injuries. Defendant objected on the basis that the plaintiff was attempting to amend the complaint ...


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