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Winsor v. Baltimore & Ohio R.r. Co.





APPEAL from the Circuit Court of Coles County; the Hon. JOSEPH R. SPITZ, Judge, presiding. MR. PRESIDING JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Defendant Railroad appeals from a judgment upon jury verdict awarding plaintiff $42,000 for personal injuries and property damage. Plaintiff does not appeal from a judgment entered upon the verdict in favor of the Chemical Corporation.

The collision occurred in Douglas County on the United States Industrial Chemicals Co. (U.S.I.) plant property. Interplant Road No. 2, a paved road, runs in a generally north-south direction within the plant. Interplant Road No. 2 is intersected by various railroad tracks which run in an east-west direction through the plant including a track called the B&O main line. As one drives south on Interplant Road No. 2, one first crosses three parallel sets of railroad tracks which lay close together. The three tracks, from north to south, are referred to as the elevator track, the B&O main line and the A track. At a point 95 feet south of the A track, the propane lead track intersects Interplant Road No. 2. It was at the intersection of Interplant Road No. 2 and the propane lead track that the accident in the instant case occurred.

Defendant presents three issues for review. It contends that (1) plaintiff was contributorily negligent as a matter of law, (2) the trial court committed reversible error in refusing to instruct the jury with an instruction which would have permitted the jury to consider plaintiff's alleged violation of a statute, and (3) the trial court committed reversible error in refusing to instruct the jury that plaintiff had a duty to stop at the railroad crossing in question.

Plaintiff testified: On March 21, 1975, he drove his semi-trailer to the U.S.I. plant where he picked up a tank filled with anhydrous ammonia. The sun had set; it was still light outside but rather hazy as plaintiff left the ammonia loading area and drove south on Interplant Road No. 2. Plaintiff stopped his semi-trailer on the north side of the B&O main line, observed no trains approaching, put his truck in "gear low, low" and slowly crossed the three sets of parallel tracks. Plaintiff had his driver's side window down, but heard nothing. As he traveled from the three tracks to the propane lead he remained in low, low gear. The propane lead was not marked with a stop sign in the direction in which plaintiff was driving. When plaintiff reached the propane lead, he looked in both directions, did not see or hear any moving train, and started across the propane lead. Plaintiff continued to look and listen as he crossed the propane lead but heard no horn or whistle sound or any bell ring. After the tractor crossed the propane lead and almost all of the ammonia tank was across the tracks, plaintiff heard a bang. He stated that he did not see the train at any time before it hit him, nor did he at any time hear a bell or whistle. Plaintiff did, however, state that the train did not stop prior to crossing the intersection. The collision caused the tractor trailer to go over onto its side and cause the train to derail after having come to a halt 150 feet east of the crossing.

George Wineland, a fire marshall employed by U.S.I., arrived at the scene shortly after the collision. He testified to the plaintiff's theoretical view at the time of the collision. His testimony is somewhat confused by the fact that he was referring to a diagram and did not specify the name of the particular tracks to which he was referring, as will be discussed in greater detail shortly. Wineland stated that a person traveling south on Interplant Road No. 2, after stopping at the stop sign south of the A track (95 feet north of the propane lead) had an unobstructed view of the propane lead track. This testimony was corroborated by Michael Corwin, one of the crewmen on the train. Wineland also stated that at the time of the collision there was a coal car on one of the tracks, 300 to 400 feet east of the intersection involved in the collision.

At trial, "Safety Rules for the Guidance of Baltimore & Ohio Railroad Employees General Notice" was introduced into evidence. That notice stated in part:

"Due to the highly flammable qualities of the commodities handled by the U.S. Industrial Chemicals Plant, Ficklin, Illinois, the rules contained herein must be strictly adhered to. * * * Engine bell shall be kept ringing at all times while engine is in motion within the plant. Engines and trains shall stop at all crossings and proceed only when crossing is protected by a member of the crew."

Plaintiff first became aware of the plant safety rules long before the accident when he was a fireman for the city of Tuscola. B&O also made several admissions which were read to the jury at trial. It admitted that there were no stop signs, cross arms or any other warning devices or signs for a distance of at least 50 feet immediately north of the site of the collision. Further, there were no electric signal devices in the vicinity of the collision which could be activated automatically by a train when it approached the crossing. B&O further admitted that it provided no flagman at the site of the collision to warn or advise users of Interplant Road No. 2 about the presence of nearby trains.

Four men constituted the crew of the train involved in the accident: Michael Corwin, the field man, Charles Johantgen, the conductor, William Shaw, the engineer, and Richard Oyler, the brakeman. All four testified on behalf of B&O to substantially the same testimony. Prior to the accident, the four men went on the train to the propane tracks at the U.S.I. plant in order for the train's tank cars to be filled with liquid propane gas. After the cars were filled, the train proceeded east on the propane lead tracks at a speed of approximately 5 to 8 miles per hour. The weather was clear and it was still light at the time of the accident. As the train approached the crossing at Interplant Road No. 2, on the propane lead traveling east, all of the crewmen heard, and the engineer testified, that he blew the whistle in the standard signal for road crossings. All four acknowledged that B&O rules require the train to stop at Interplant Road No. 2, and that the rules required a member of the crew to flag the crossing before the train proceeded. All admitted that the train did not stop at Interplant Road No. 2 and that no one flagged the crossing in this particular instance. All members of the crew were on the right-hand side of the train, opposite from the side of the train which plaintiff was approaching. Engineer Shaw stated that as the train approached Interplant Road No. 2 its headlight was on and the bell of the train was ringing. He saw plaintiff's tractor just seconds prior to the collision, and put on an independent brake valve at that time. Shaw admitted that he did not sound the bell or the whistle until four or five car lengths before reaching the crossing.

Don Rhodes, a maintenance supervisor at U.S.I., testified that access to the plant is limited, that not everyone could come into the U.S.I. plant at will, and that Interplant Road No. 2 is a private road.

At the close of plaintiff's case, both defendants moved for directed verdicts and the trial court denied both motions. At the close of all the evidence, both defendants renewed their motions for directed verdicts which the court again denied. The jury returned a verdict finding for plaintiff and against defendant B&O, assessing the plaintiff's damages in the sum of $42,000. The jury also found in favor of defendant U.S.I. and against the plaintiff. The trial court entered judgment on the verdicts and denied B & O's post-trial motion.

• 1 B&O first argues that plaintiff was contributorily negligent as a matter of law and therefore the trial court erred in denying their motions for a directed verdict. B&O bases its position on the testimony which it claims establishes that plaintiff did not see the oncoming train, although he had an unobstructed view of it, did not hear the train, although the bell was ringing, and did not stop before crossing the track despite the known danger involved. Our review of the evidence indicates that the evidence of contributory negligence, when viewed in its aspect most favorable to the plaintiff, does not so overwhelmingly establish plaintiff's negligence that no verdict finding him free from contributory negligence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.

B&O's principal contention is that plaintiff had an unobstructed view of the propane lead track from Interplant Road No. 2 and should have, in the exercise of ordinary care, seen the oncoming train. Had that been the evidence, the law supports B&O's position.

"The law casts disfavor on the person who claims that upon approaching an unobstructed crossing he looked but did not see an oncoming train. However, the law readily acknowledges that if a crossing is obstructed, a person, diligently using the senses of sight and hearing and exercising the ordinary care expected under the circumstances, might be excused for failing to perceive that the train was approaching. * * * Generally, in those cases in which a crossing is obscured, whether a plaintiff exercised due care and whether the obstruction prevented the plaintiff from perceiving an oncoming train are questions of fact for the jury and not matters of law which would require the court to intervene." National Bank of Bloomington v. Norfolk & Western Ry. Co. (1978), 73 Ill.2d 160, 169, 383 N.E.2d 919, 922.

In the instant case, the testimony regarding the obstruction of plaintiff's view is unclear and confusing. The source of the confusion is plaintiff's exhibit No. 3, a plat of the U.S.I. Plant, which was introduced into evidence. Exchanges occurred between counsel and witness in which each would point to the plat without verbalizing the specific track or area to which they were referring. In the testimony of George Wineland, relied on by defendant to support its contention that no obstruction existed, Wineland pointed to the spur track, and acknowledged that coal cars were sitting on that track 300 to 400 feet east of the intersection at the time of the collision. The following exchange then occurred:

"Q. Were there any cars on this track?

A. There was one. No, not on ...

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