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Lubbers v. Norfolk & Western Ry. Co.

OPINION FILED OCTOBER 5, 1983.

DELBERT LUBBERS, PLAINTIFF-APPELLANT,

v.

NORFOLK AND WESTERN RAILWAY COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Macon County; the Hon. John L. Davis, Judge, presiding.

JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 2, 1983.

On August 12, 1977, plaintiff filed suit against defendant, Norfolk & Western Railway Company, in the circuit court of Macon County, seeking damages for injuries he suffered when a truck he was driving was struck by one of defendant's trains on July 20, 1977. On December 5, 1979, that court entered judgment on a verdict in favor of defendant. On appeal, this court affirmed. (Lubbers v. Norfolk & Western Ry. Co. (1980), 89 Ill. App.3d 1205 (Rule 23 order).) On September 15, 1982, plaintiff filed a petition under section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401), formerly section 72 of the Civil Practice Act, requesting that the judgment on the verdict be vacated and a new trial granted. On November 19, 1982, the trial court allowed a motion to dismiss the petition and, on January 4, 1983, denied plaintiff's request for leave to file an amended petition. Plaintiff has appealed. We reverse and remand.

The thrust of plaintiff's section 2-1401 petition is that defendant (1) produced testimony at trial known to be false, (2) knowingly gave false answers to interrogatories, and (3) fraudulently withheld the names of two persons who had knowledge of a matter upon which inquiry was made by an interrogatory. The petition maintains that plaintiff's counsel had only recently obtained knowledge of the foregoing. It asserts that if the information now available to him had been available at trial, the outcome would have been different.

In order to appraise the significance of plaintiff's contentions, certain facts, shown by the record, concerning the original case, must be considered. The collision occurred at a place in Macon County called "Angle Crossing" because of the sharp angle at which a road upon which plaintiff was driving crosses defendant's tracks. The tracks run in a generally east-west direction. Plaintiff approached the crossing from the southeast. The angle at which he approached was so sharp that it was difficult for him to look down the tracks to the east, the direction from which defendant's train was coming. The evidence was undisputed that flasher lights at the crossing were flashing as the train approached, and plaintiff testified that he saw the lights flashing when he was a quarter of a mile from the crossing.

Plaintiff's complaint alleged that he was in the exercise of due care and that defendant was negligent in failing to maintain the warning signs at the crossing and failing to repair or correct any defects. The case was tried prior to the effective date of Alvis v. Ribar (1981), 85 Ill.2d 1, 421 N.E.2d 886, which proclaimed the doctrine of comparative negligence. The jury not only found for the defendant, but in answer to an interrogatory submitted by defendant, found plaintiff guilty of negligence which was a proximate cause of his injuries.

A portion of plaintiff's section 2-1401 petition was supported by the affidavit of Richard T. Polley who, at the time of the collision, was a signal maintainer for defendant working at a tower in the Decatur yard. This portion stated: (1) he and Donald F. Patterson, assistant superintendent for defendant's Decatur Division were called to the scene of the collision shortly after it happened; (2) upon arrival, Polley unlocked the crossing signal control case and removed a signal inspection card; (3) the card contained no entries indicating inspections in the six-week-period prior to the collision; (4) when Polley showed the card to the assistant superintendent, the latter took the card from Polley and warned Polley he had better keep quiet about what he had seen if he wanted to keep his job; and (5) Polley told no one of this episode until he told Robert D. Owen, one of plaintiff's attorneys, on March 5, 1982.

Prior to trial, plaintiff submitted interrogatories to defendant. His claim of fraud is based partly on the answers to two of them.

Defendant answered "yes" to a question as to whether the lights were "functioning at the time of the accident." The next interrogatory asked:

"If you contend that all signals and/or devices were functioning at the time of the accident, state all facts on which you base this contention, together with the name and address of each person who observed the signals in question at that time."

A lengthy answer was given to the interrogatory, but the names of Polley and the assistant superintendent were not mentioned; nor was any mention made that the signal's inspection card gave no indication that, at the time of the occurrence, no inspection had been made during the immediately preceding six weeks. The answer did say: "Signals checked on July 6, 1977, by David F. Flannell [address] were found to be operating as intended."

Concerning the maintenance of the signals, plaintiff asked and defendant answered as follows:

"Was there an established schedule for checking the working conditions of such signals and/or devices? If your answer is yes, state what the schedule was, the last date the signals and/or devices were checked, in ...


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