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Kreke v. Caldwell Engineering Co.





APPEAL from the Circuit Court of Sangamon County; the Hon. JERRY S. RHODES, Judge, presiding.


The defendant Caldwell Engineering Company appeals from the judgment of the circuit court in favor of plaintiffs in their action to recover damages for the death of their father, William Monken, under the construction injuries act (Ill. Rev. Stat. 1971, ch. 121, par. 314.1 et seq.).

The suit stemmed from the death of William Monken in November 1972, in an automobile accident which occurred near the intersection of Route 104 and U.S. 36-54. Defendant Caldwell was doing construction work in the area. The jury found liability and entered judgment, in the amount of $400,000, on behalf of the plaintiffs, all children of the decedent. From that verdict and judgment, Caldwell now appeals. It contends that the construction injuries act is not applicable to the facts of this case and that no liability under the act is justified. It further contends that the evidence was insufficient, as a matter of law, to show that any violation of the act was the proximate cause of the accident in which Monken was killed. Other issues raised by Caldwell address evidentiary rulings by the court, decisions on the pleadings, and an instruction. The issues will be specifically set forth in our discussion and analysis following presentation of the pertinent facts.

It is essential to an understanding of the case to have a clear view of the area in which the accident occurred, and for this reason the attached diagram, our composite based upon combined submitted exhibits and testimony, is included. This diagram was not an exhibit submitted in this cause.

The record reveals that defendant Caldwell Engineering was awarded the bid to remove the bridge or superstructure over the railroad tracks on U.S. Route 36-54, just east of the intersection of 36-54 with Route 104. Caldwell's contract with the State of Illinois contained special provisions addressing traffic control standards related to the proposed construction on 36-54. The applicable "signing" on 36-54 was set forth, as were the detour layouts for the project. A pertinent part of the plans for construction was the closing of that portion of Route 104 lying between the eastbound lanes of 36-54 and the westbound lanes of 36-54. A barricade was erected, preventing traffic northbound on Route 104 from proceeding normally on 104 at the intersection with 36-54. A barricade was also erected preventing traffic northbound on 104 from turning right, at the intersection, onto eastbound 36-54. Northbound traffic on 104 could neither turn right, nor proceed on 104 and then merge with westbound lanes of 36-54, as was the pre-existing pattern prior to construction. Rather, through the use of barricades, a detour was established which required all traffic coming north on 104 to turn left (westerly) and proceed along the formerly eastbound lanes of 36-54. Traffic off of 104 would proceed along those eastbound lanes until routed north, again by detour crossing, onto the two lanes of 36-54 which were formerly westbound. The formerly westbound lanes, however, were made two-way to accommodate the changes for construction. As is evident, considerable and significant changes in the traffic pattern at the intersection were necessitated. Northbound 104 traffic, which formerly could only have gone straight or turned right, was required to turn left, onto what had formerly been oncoming traffic lanes of 36-54.

In addition to the construction work, Caldwell was performing east of the intersection, it was also the contractor on work which was done at the intersection of 104 with 36-54. This work called for the removal of existing curbing on both sides of northbound 104 at its intersection with 36-54 and for the widening of the radius of the corners there.

The above-mentioned changes and traffic routing, along with barricades, are shown on the diagram referred to in this opinion.

Prior to construction, a conference was held between representatives of Caldwell and representatives of the State Traffic and Construction Division. As a result of the meeting, a traffic-standard sketch, showing necessary changes in signing in the area, was prepared. The initial sketch was unavailable at the time of trial, and there was a dispute in the evidence as to whether the lost sketch contained requirements for advance warning signs on 104, prior to the intersection with 36-54. Although in pretrial statements a senior Caldwell employee, who had attended the conference, stated that there was a temporary advance warning sign erected on 104 as it approached the intersection, at trial Caldwell conceded what photographic evidence conclusively demonstrated. There were no temporary advance warning signs on 104 to advise northbound traffic of the construction ahead or of the detour and traffic changes at the approaching intersection with 36-54.

The only change in Route 104 signing prior to the accident was the removal of a stop sign, with flashing red light atop, from the intersection of northbound 104 and 36-54. Originally, there were three stop signs at the intersection of northbound 104 and 36-54. There was one which stopped 104 traffic turning right onto the eastbound lanes of 36-54, prior to entering those eastbound lanes. There were two, one on each side of the 104 roadway, where 104 met 36-54, and then proceeded across the eastbound lanes of 36-54, to finally merge with the westbound lanes of 36-54. Both of these had flashers atop of the stop sign. The sign on the southwest side of the 104 roadway at the intersection was disconnected and removed in August 1971, by Egizii Electric Company, at the direction of State of Illinois personnel. The removal of the sign and its post was done to permit Caldwell to widen the turn at the intersection and to enable large trucks to turn left onto the westbound pavement as a detour. After the removal of that stop sign, there was one remaining on the southeast side of the 104 roadway, and one further east for traffic which would, after construction, again be able to make the right turn.

Other permanent signing along Route 104 as it approached the intersection included a railroad crossing sign approximately 1500 feet from the intersection, a "Stop Ahead" sign approximately 1100 feet from the intersection, a "Center Curb Ahead" sign about 900 feet from the intersection, a junction sign at about 700 feet, and then a "Keep Right" sign slightly back of the point of the median, some 300 feet before the intersection. As already indicated above, there were no temporary warning signs posted on Route 104 to indicate to northbound traffic that there was construction ahead, that part of 104 was closed ahead, or that a detour was ahead at the intersection.

The facts pertinent to the accident which took the life of William Monken are undisputed. Jo Ann Monken, mother of the five plaintiffs, and suing as next of kin for three of the minors, was the divorced wife of William Monken at the time of the accident. He and she had been divorced in October 1971. On the evening of the accident, being November 16, 1971, she had been bowling and had returned to her Chatham, Illinois, home around 11:30 p.m. Sometime thereafter, William Monken, who was then residing in Springfield, came to the house, wanting to talk with her. She asked if he was hungry or wanted a cup of coffee. He said he was not, but he indicated he would like to take a ride and talk with her. They left and took a drive. They drove south to Auburn, where they turned onto Route 104, heading westerly. They decided to go to Jacksonville to stop at a late-night cafe. They proceeded west and then northwesterly on 104 toward Jacksonville. Monken was traveling about 50 mph, and the road surface was dry. It was a clear night. Mrs. Monken testified that she had no reason during the drive to be concerned about his operation of the auto. He had no restrictions on his license and did not wear glasses. He was wearing a seatbelt, a normal precaution of his, but she was not wearing her belt. As they drove along, she was in a position to see stop signs and other signs. When approaching the 104 and 36-54 intersection, just outside of Jacksonville, she did not notice anything out of the ordinary. She did not see anything indicating any construction in the area. She had never traveled on Route 104 previously. While driving they had discussed a variety of things, including the children and an upcoming birthday. As they were approaching the intersection with 36-54, heading northwesterly on Route 104, she noticed the railroad crossing some 1500 feet from the intersection. She also saw the "Stop Ahead" sign (1100 feet), the "Center Curb Ahead" sign (900 feet), and the "Keep Right" sign (300 feet). William Monken was looking ahead at the roadway, and she was turning from side to side while talking to him. She did see the signs, and she was aware of the "Keep Right" sign as the car approached it. The car slowed down as it proceeded upon the incline toward the intersection. She felt a slight pull as it went up, and testified that Monken was not speeding up the incline. She estimated the speed at 20-25 mph. His attention was directed to the highway as she talked. As they were going up the incline, within 100 to 150 feet of the intersection, she was looking at him and suddenly he said, "Oh my God Jo Ann." She looked and all she saw was a yellow flashing light. That was all she remembered until she woke up and found herself in the back seat of the car. According to police reconstruction, the Monken auto had swerved left, while braking, and then left the west edge of the 104 pavement, hitting the guardrail on the west edge. The guardrail begins about 100 feet from the intersection. The car then slid along the guardrail, went over it and then rolled over on its top and down the steep grade on the infield side of the guardrail.

Jo Ann Monken woke up in the back seat of the car. She got into the front seat, examined Monken, could not wake him, and could not get the doors open. She attempted to unfasten his seatbelt, but could not. She was then able to get herself out of the car, and she went for help down the road. When help finally arrived, in the form of fire and police vehicles and personnel, the car was in flames and Monken was dead.

Other evidence at trial, while disputed, indicated that there were construction trailers and machinery along the east side of Route 104, approximately 400 feet before the intersection. Plaintiffs' expert, a consulting traffic engineer, graphically indicated that the presence of the equipment would have made it difficult, if not impossible, for an approaching driver to see the signs at the intersection when his auto was beginning its approach up the incline ramp. It was also shown that the one remaining stop sign with a flasher was located on the southeast side of the 104 roadway, considerably off to the right of the line of sight of a driver approaching the intersection from the direction the Monken car approached. This was the result of the fact that the roadway, after bifurcation at the median, curved considerably to the right. Furthermore, it was shown that the remaining sign with a flasher was on an elevation almost five feet higher than the elevation of the roadway from the railroad crossing (1500 feet) to the median bifurcation (400 feet).

The State highway patrolman who investigated the accident indicated that he drove southerly along 104 after the accident, on the night of November 16, 1971. He then approached the intersection from the direction that the Monken car had approached. He testified that he could observe the flashing stop light, when looking for it, at a distance of 1500 feet, nearby the railroad crossing on 104. However, he stated that he did not continue to check as to its visibility upon closer approach to the intersection. The officer, at the inquest, stated that in his opinion there were two possible causes of the accident. The first was that the driver was unfamiliar with the crossing and the other was that it was a construction site. He also testified that there was no evidence of excessive speed on the part of the Monken auto.

Both sides produced expert testimony on the issue of whether temporary signing was needed along Route 104 as it approached the intersection with 36-54. Plaintiffs' expert concluded that temporary signing, warning of construction and a detour, was necessary in order to advise motorists to slow down and be aware of possible changes in the direction of travel or other modifications due to construction. He based his conclusion on the dangerous nature of the intersection even before construction, the widening of the curve on 104 at the intersection, the presence of the trailers and equipment alongside 104, and the removal of the stop sign with flasher on the southwest side of the 104 highway at the intersection. Caldwell's expert, on the other hand, concluded that the existing signing on Route 104 was sufficient to warn oncoming traffic to slow down. He further concluded that Caldwell did not need to re-erect the stop sign that had been removed for their construction at the intersection.

In addition to the above witnesses, there was also considerable testimony on the issue of damages, which we need not detail in this opinion, as no issue with respect to the damage award is taken by defendant. Having set forth the pertinent factual background, we turn to the issues ...

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