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Paulison v. Chicago

OPINION FILED JULY 24, 1979.

GLORIA M. PAULISON, ADM'R OF THE ESTATE OF GORDON R. PAULISON, DECEASED, PLAINTIFF-APPELLANT,

v.

CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD, INC., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Lake County; the Hon. LLOYD A. VAN DEUSEN, Judge, presiding.

MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THIS COURT:

The plaintiff, as administrator of the estate of Gordon R. Paulison, deceased, brought a wrongful death action against the defendant Chicago, Milwaukee, St. Paul & Pacific Railroad Co., Inc., and some of its personnel to recover damages resulting from a railroad crossing accident. At the close of all evidence the case against co-defendant Dozier, who had been acting as the train's engineer, was dismissed. The jury returned a general verdict of not guilty in favor of the railroad, but in answer to a special interrogatory found that the deceased was not guilty of contributory negligence. Plaintiff appeals from the trial court's entry of judgment on the general verdict.

On December 13, 1973, the decedent was driving south in his International Harvester Scout on St. Mary's Road near Libertyville, Illinois, on his way to work. It was snowing heavily and visibility was reduced. While crossing defendant's railroad track, the decedent's vehicle was struck and demolished by a Chicago-bound commuter train. Paulison and his two passengers were killed instantly.

St. Mary's Road is a two lane highway. Near the railroad crossing in question the road runs through a cut. The crossing is protected by a sign and flashing lights. The vicinity was laden with shrubs, trees, and other vegetation. Plaintiff's witness, Neil Span, was driving a truck southbound over the crossing just ahead of the Paulison vehicle. Span testified that the warning flashers were so obstructed by snow that they were not blinking. He didn't see the train until he heard its whistle blow. After he got his truck over the track he heard the impact of the train and the Paulison Scout.

The train involved was some 30 minutes behind schedule and was traveling approximately 60 m.p.h. The engineer of the train testified that at the whistle post about a quarter of a mile from the crossing he activated the train's warning bell and began to blow the train's horn. The engineer further testified he first saw the decedent's Scout when it was approximately two railroad car lengths away. The vehicle did not slow down. The engineer immediately applied the emergency brake and sounded the horn. The train collided with the Scout dead center. The train finally came to a stop approximately a quarter of a mile past the intersection. There was conflicting testimony of whether or not the warning flashers were visible at the time of the accident. A number of witnesses, including Span and Herbert Bracher, captain of the Libertyville Fire Department, testified that the flasher lights were so snow covered that day that no light was coming through. However, other witnesses, including railroad employees and a sheriff's investigator, testified that the flashing lights were visible after the accident.

On appeal plaintiff alleges a number of prejudicial errors including: the admission of evidence concerning prior accidents at the crossing, the failure to find that the general verdict and answer to the special interrogatory were inconsistent, the precluding of the jury from consideration of certain theories of the plaintiff's case, the giving of certain of the instructions tendered by the defendant, the restricting of the questioning of plaintiff's expert witness, and the admission of evidence of railroad speed limits.

Apart from the issue of the answer to the special interrogatory controlling the general verdict, the thrust of plaintiff's contentions on appeal is that the trial court prevented plaintiff from fully presenting her theory of the case to the jury. In plaintiff's view, the trial court's misunderstanding of plaintiff's case led not only to the dismissal of portions of the complaint and the corresponding denial of proposed jury instructions, but to alleged errors in evidentiary rulings as well.

Plaintiff offered the following instructions as her theory of the case:

"The plaintiff claims that her decedent suffered his death while exercising ordinary care and that the defendant was negligent in one or more of the following respects:

Operated, maintained and controlled its said crossing so that as a direct and proximate result thereof plaintiff's decedent suffered his death;

Operated, maintained and controlled its said crossing and the approaches thereto so that the same were not reasonably safe, in violation of a statute of the State of Illinois;

Failed to provide automatic gates at the crossing notwithstanding the increase of traffic over it;

Failed to have a proper division of grade at said crossing;

Failed to keep its right-of-way clear of brush, shrubbery, trees and other unnecessary obstructions in violation of a rule of ...


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