APPEAL from the Circuit Court of Cook County; the Hon. CHARLES
E. FREEMAN, Judge, presiding.
JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Donna Roberts brought a personal injury action against the City of Chicago and the Milwaukee Railroad Company to recover for injuries she sustained when she lost control of her automobile and collided with another automobile after hitting a pothole on or near a railroad crossing. Midway through the trial, Milwaukee Railroad Company settled with Roberts and was dismissed from the suit. The trial continued with the City of Chicago as the sole defendant. The jury found for Roberts and awarded her $300,000 in damages. The City of Chicago now appeals.
The issues on appeal are whether the trial court erred in: (1) not allowing the City of Chicago to file a third-party complaint against the Milwaukee Railroad; (2) in refusing to instruct the jury as to the statutory duty of railroads to maintain railroad crossings; and (3) in permitting plaintiff's previously undisclosed witness to testify.
On June 14, 1974, at 8 p.m., Donna Roberts (plaintiff) was involved in an automobile accident near a railroad crossing at 6605 West Diversey in Chicago. As she approached the railroad crossing, plaintiff slowed down and applied the brakes. When plaintiff drove across the tracks, her car hit one or more potholes and bounced. The steering wheel jerked out of plaintiff's hands and her car veered to the left and collided with another automobile.
Plaintiff brought an action against the City of Chicago (the City) and Milwaukee, St. Paul & Pacific Railroad Company (Milwaukee Railroad). In her complaint, she alleged that as a result of the City's failure to maintain the railroad crossing, she lost control of her car and collided with another vehicle. Further, she alleged that Milwaukee Railroad was guilty of negligence in maintaining the grade crossing.
The case went to trial on January 13, 1981. Midway through trial, Milwaukee Railroad reached a settlement with plaintiff in the amount of $50,000 and was dismissed from the suit. The City asked for leave to file a third-party complaint against Milwaukee Railroad. The motion was denied. The trial continued with the City as the sole defendant.
Numerous witnesses testified on behalf of both plaintiff and the City. Their testimony will be referred to as necessary in the body of this opinion.
The City tendered a jury instruction which stated that a railroad company must maintain highway grade crossings over its tracks and approaches thereto. The trial court refused to submit the instruction to the jury. On January 22, 1981, the jury returned a verdict for plaintiff in the amount of $300,000.
• 1 First, the City argues that the trial court erred in not allowing it to file a third-party complaint against Milwaukee Railroad. On January 20, 1981, Milwaukee Railroad was dismissed. The following day, the City requested leave to file a third-party complaint against Milwaukee Railroad. The trial court denied the City's request. The basis for the trial court's decision was that it did not want to further delay the trial. We note that the City had 6 1/2 years between the date the lawsuit was filed and the date the trial began in which to file a counterclaim (Ill. Rev. Stat. 1979, ch. 110, par. 38) or a third-party action (Ill. Rev. Stat. 1979, ch. 110, par. 25(2)). Instead, the City waited until after midtrial and after Milwaukee Railroad had been dismissed from the suit. Under these circumstances, we cannot say that the trial court abused its discretion in refusing the City's request. See Hastings v. Abernathy Taxi Association, Inc. (1973), 16 Ill. App.3d 671, 306 N.E.2d 498.
Next, the City argues that the trial court erred in refusing to submit to the jury an instruction relating to a railroad's statutory duty to maintain its railroad crossing. The tendered instruction included part of section 58 of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 62) and was patterned after IPI Civil No. 60.01 (Illinois Pattern Jury Instructions, Civil, No. 60.01 (2d ed. 1971)). The full text of the instruction is as follows:
"At the time of the occurrence in question, there was in full force and effect in the STATE OF ILLINOIS and the CITY OF CHICAGO, a certain statute which provided that:
`* * * Every railroad company operating in the State of Illinois shall construct and maintain every highway grade crossing over its tracks within the State so that the roadway at the intersection shall be flush with the rails, and, unless otherwise ordered by the commission, shall construct and maintain the approaches thereto at a grade of not more than five (5) per cent within the right of way for a distance of not less than twenty-five (25) feet on each side of such tracks * * *'
If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not the party ...