APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
A. HIGGINS, Judge, presiding.
MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
A railroad crossing collision involving defendant's locomotive and plaintiff's automobile in the village of Franklin Park, Illinois, resulted in a lawsuit filed by Robert L. Reiss, also the driver of the automobile, against the Chicago, Milwaukee, St. Paul and Pacific Railroad Company, Incorporated, as well as individual defendants, George Thomas, engineer of the locomotive and Edward Leaper, locomotive electrician, seeking to recover for personal injuries and property damages occasioned by the alleged negligence and wilful and wanton misconduct of each defendant. Count I of plaintiff's third amended complaint alleged simple negligence. Counts II and III thereof alleged wilful and wanton misconduct, each count being based upon the same alleged actions of defendants, the only difference being that count II contained a prayer for relief in the form of punitive damages, whereas count III sought compensatory damages. The individual defendants were voluntarily dismissed by plaintiff. At the close of plaintiff's evidence, the trial court directed a verdict for defendant railroad as to count II and at the close of all the evidence, verdicts were directed in favor of defendant railroad on the remaining counts. No post-trial motions were filed. No questions are raised on the pleadings.
This appeal is taken from the entry of the directed verdicts in favor of the remaining defendant. Plaintiff seeks reversal of the orders granting the directed verdicts and asks that the cause be remanded for a new trial. For the reasons hereinafter stated, we reverse and remand for a new trial.
The issues identified by the parties are whether: (1) plaintiff was properly found guilty of contributory negligence as a matter of law; (2) plaintiff proved a prima facie case on the issue of defendant's alleged wilful and wanton misconduct; and (3) the trial court correctly ruled that punitive damages were not available against a railroad, assuming evidence supported allegations of defendant's wilful and wanton misconduct.
The accident occurred on December 21, 1972, at approximately 8:40 a.m. when defendant's single, eastbound locomotive collided with the left side center of plaintiff's northbound 1967 Ford Mustang at the Scott Street crossing operated by defendant in Franklin Park. At the site of the accident, Scott Street runs north and south and the railroad tracks run east and west, crossing Scott at right angles. The crossing consists of six sets of tracks owned by defendant, the impact having occurred on the fifth set of tracks north of the most southerly tracks, known as Main Line No. 2. To the south of this crossing are situated two sets of spur tracks which cross Scott Street on a northwest-southeast angle. Several hundred feet south of the crossing is an east-west roadway, Franklin Street, which intersects with Scott Street. Stop signs require north and southbound traffic on Scott to stop for Franklin. Between the spur tracks on the north and Franklin on the south, Scott is bordered on the west by Hartley's Moving and Storage Company truck parking lot and on the east by buildings housing the Hartley Moving and Storage Company business.
Defendant's right-of-way is protected by warning devices equipped with flashing lights, bells and short arm crossing gates. One set of such devices is located in the southeast quadrant of the crossing intended to regulate northbound traffic, and the other set is located in the northwest quadrant, intended to regulate southbound traffic over the crossing. The devices placed in the southeast quadrant are located at the east side of Scott between the northernmost set of spur tracks and the southernmost set of defendant's tracks, approximately 12 feet south thereof. The distance between these devices and the center of Main Line No. 2, at which the accident took place, is approximately 72 feet.
To the right of a northbound motorist the eastward view is blocked by the Hartley buildings up to the spur tracks which are located in the southeast quadrant of the crossing. To the left of a northbound motorist the westward vision is partially blocked by trucks parked in the parking lot. The northernmost edge of the parking lot ends at the spur tracks. A telephone pole stands on the west side of Scott, between the most northerly rail of the spur tracks and the most southerly rail of defendant's tracks.
Plaintiff testified that on the date of the accident he overslept between 45 minutes and one hour, leaving home for work between 8:20 and 8:30 a.m. His health and hearing before the occurrence were good. His motor vehicle was in good operating condition. His home was five blocks from the railroad crossing, four of those being traveled northbound on Scott Street at a speed of from 15 to 20 miles per hour. He stopped at Franklin Street for the stop sign and proceeded northward to the railroad crossing. He was very familiar with this crossing, having taken this route to work almost daily. He observed that the lights on the southeast quadrant signaling device were not on and the gates were up, as he traveled northward from Franklin. He noticed "quite a few" trucks parked in the Hartley lot on the west side of Scott south of the spur tracks, the nearest being five to 10 feet south of the spur tracks. As he continued northbound he looked to the west but saw no train or locomotive. When his car started to cross the first set of spur tracks it slowed down because he removed his foot from the accelerator but did not step on his brake pedal.
When plaintiff's auto reached approximately the south rail of the first spur tracks, he testified, the lights on the signaling device were not lighted, the gates were up and he heard no ring of a bell. He did not hear a whistle. The windows of his car were up and his radio was on. He glanced to the west and observed the railroad right-of-way for about 50 to 100 feet. When the front end of his car was about even with the signaling devices, he heard a bell and his attention was immediately diverted to the east by its sound. He still heard no whistle. At that time, the car was moving at about 10 to 15 miles per hour and the gates were still up. He looked to the east in the direction of the sound of the bell and saw no trains approaching. His car was still moving and he thereafter looked to the west, at which time he noticed the locomotive involved for the first time as it was hitting his automobile at the driver's door. After the collision, plaintiff observed that the gates at the northwest quadrant of the crossing were up.
On cross-examination plaintiff testified that on the day before the accident his employer had spoken to him about his excessive tardiness. His car came to rest next to and against a shed located in the northeast quadrant of the crossing. He knew the bell he heard was from a railroad crossing warning device and that it signified a train would be coming, but he did not stop. Plaintiff's Exhibit No. 20, a photograph taken at a point just south of the signaling devices in the southeast quadrant of the crossing, depicts an unobstructed view of the west with the exception of a telephone pole, and plaintiff testified that the view therein presented was the same that he had had on the day of the accident. He explained that he kept the car moving and did not apply his brakes when he heard the bell because he didn't expect the train to be right there. Based upon his experience, he believed that when the bell starts ringing, the train is normally a good distance from the crossing. He was not aware that the locomotive would be upon the crossing so quickly. Had he stopped when he heard the bell, the gate in the southeast quadrant would have crashed down on top of his car. He did not think that he could have stopped in time to avoid the accident, estimating his reaction time at from 3 to 4 seconds.
Called as an adverse witness by plaintiff, George Thomas, the locomotive engineer, testified that at a point approximately 400 to 500 feet west of the west edge of Scott, traveling at a speed of 30 to 35 miles per hour, he observed plaintiff's automobile for the first time. (Pursuant to later questioning by defense counsel, he stated that the gates were down at that time and plaintiff's car was south of the gates.) He looked away for a time and on the second occasion saw plaintiff's car, which was not inside the gates, the locomotive then being between 250 to 300 feet west of the west side of Scott. He did not see plaintiff drive his car around the gates. He applied his brakes. At impact, the locomotive was traveling between 18 and 22 miles per hour.
After the occurrence, Thomas backed the locomotive westward over the crossing in order to test the signal. He first stated that he could not recall the action of the gates on that movement; however, upon being read an excerpt from a deposition, he recalled having stated that the gates did not work on that movement. When he thereafter moved from west to east over the crossing in the test, again he was unable to recall whether the signaling device worked and he agreed having testified at his deposition that the gates were not activated when he came through on that aspect of the test.
During defendant's case, Thomas testified that after he first sighted plaintiff's car he turned to his fireman, Roger Phillips, who was seated on the north side of the engine along with Edward Leaper, the electrician, and Phillips noted that the gates on the north side of the crossing were down. According to Thomas, the locomotive headlight was lighted and he blew the whistle and sounded the bell. When he observed plaintiff's auto for the second time, it appeared to be accelerating. When it appeared to Thomas that plaintiff was trying to race to get across the crossing, he threw his engine into emergency service and applied sand to the tracks.
Roger Phillips, the fireman employed by defendant on the locomotive involved in the accident, was also called as an adverse witness by plaintiff. He testified that as the locomotive was approaching Scott, about 300 feet west of the crossing, he called out that the gates on the north were down and that he had been watching them as they went down. He heard the locomotive ...