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Frankenthal v. Grand Trunk West. R.r. Co.

OPINION FILED DECEMBER 14, 1983.

LILO FRANKENTHAL, ADM'X OF THE ESTATE OF HARRY J. FRANKENTHAL, DECEASED, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

GRAND TRUNK WESTERN RAILROAD COMPANY ET AL., DEFENDANTS-APPELLEES — (GRAND TRUNK WESTERN RAILROAD COMPANY, DEFENDANT AND CROSS-APPELLANT).



Appeal from the Circuit Court of Cook County; the Hon. Jerome Lerner, Judge, presiding.

PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Plaintiff brought this action against defendants Grand Trunk Western Railroad Company and Bruce McTague, its engineer, seeking to recover for the death of her husband following a train collision with decedent's automobile. A jury returned a verdict in favor of defendant McTague. It also returned a verdict in favor of plaintiff against Grand Trunk in the amount of $100,000 but reduced that amount to $5,000 on its finding that the decedent was 95% at fault and Grand Trunk was 5% at fault. The trial court denied post-trial motions and entered judgments on the verdicts. On appeal plaintiff contends that the trial court committed reversible error in excluding testimony of decedent's careful habits and in instructing the jury. She also contends that the judgments in favor of McTague and finding decedent 95% at fault are against the manifest weight of the evidence. Grand Trunk has filed a cross-appeal contending that the trial court erred in not directing a verdict in its favor or in not granting its motion for judgment notwithstanding the verdict, in denying its motion to strike the testimony of plaintiff's medical expert, and in instructing the jury. Grand Trunk also contends that plaintiff's action under the survival act is barred by the statute of limitations.

The accident occurred at South Park Avenue in South Holland, Illinois. South Park is a four-lane road which runs north and south and is intersected by two Grand Trunk railroad tracks. The tracks are at a slight angle from southeast to northwest. The northern set of tracks handles westbound train traffic and the southern set of tracks handles eastbound train traffic. As a train approaches proceeding westbound, it rounds a curve. The track is then straight for approximately a mile and a quarter before the South Park intersection and straight for approximately one-third to one-half mile after the intersection. About one-quarter mile east of South Park is a railroad crossing at 167th Street. To the west of South Park is the Thornton Junction where the Grand Trunk tracks are intersected by tracks of another railroad.

The South Park crossing is surrounded by both commercial and residential property. As a vehicle approaches heading north, the visibility to the right is reduced by trees and homes along the track. The crossing is protected by gates with flashing lights and cantilevered lights. Also posted are signs indicating a railroad crossing and that there are two sets of tracks. The gates and lights are activated as the trains move over an electrical circuit some distance before the crossing. There is no dispute that on the day of the accident the gates had lowered and the lights were flashing at the South Park crossing.

Grand Trunk's passenger train 155, involved in the occurrence, originated in Port Huron, Michigan. With McTague as engineer, the train proceeded to Chicago. It approached South Park at about 8 a.m. on January 26, 1971. The train was traveling at 79 miles per hour but McTague started service reduction of the automatic brakes before reaching South Park in order to slow the train to 60 miles per hour when it reached the Thornton Junction. Just prior to the collision the train was traveling approximately 73 miles per hour.

Decedent left his home shortly before 8 a.m. and drove north on South Park Avenue. According to Bob Worthington, the train fireman, decedent's automobile approached the crossing at about 30 to 40 miles per hour without stopping. Worthington also noticed a freight train coming east on the other set of tracks. As decedent drove around the lowered warning gates and across the tracks, Worthington yelled at McTague to apply the emergency brakes.

Nancy Hendrickson, the driver of a southbound automobile on South Park, saw the decedent's vehicle on the tracks only an instant before it was struck by the train. She testified that the gates at South Park were frequently lowered for long periods of time without a train crossing. On the morning of the accident, before decedent went around the gates, she saw three or four other vehicles go around the gates during approximately a 10-minute wait. As decedent drove across, his automobile was struck in the right rear and thrown into the southbound lane of traffic, breaking the gate and striking Hendrickson's automobile.

Decedent suffered serious injuries requiring 50 days of hospitalization. He died 20 days after his release from the hospital.

• 1 On appeal plaintiff initially contends that the trial court erred in refusing to admit testimony regarding the careful habits of the decedent. We do not agree.

In excluding such testimony, the trial court properly relied on the long-accepted principle that careful habits testimony is allowed to establish decedent's due care prior to the accident only when there are no eyewitnesses to the occurrence. (Newell v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1914), 261 Ill. 505, 104 N.E. 223; Lobravico v. Checker Taxi Co. (1967), 84 Ill. App.2d 20, 228 N.E.2d 196.) In the present case, two eyewitnesses, Hendrickson and Worthington, observed the occurrence. While Hendrickson's testimony related only to an instant before the collision and thereafter, Worthington's testimony described the events leading up to and following the collision. Plaintiff argues, however, that Worthington's testimony was impeached and was unworthy of belief. Our review of the record does not reveal that his testimony was impeached. Moreover, merely because Worthington's credibility was attacked does not in itself justify the use of careful habits testimony. (Petro v. Hines (1921), 299 Ill. 236, 132 N.E. 462.) A holding that careful habits testimony would be admissible any time the credibility of the eyewitness was challenged, as plaintiff argues, would obliterate the rule holding such testimony generally not admissible. The trial court correctly excluded the careful habits testimony.

Plaintiff next argues that the trial court erred in giving certain defendants' instructions to the jury and in refusing to give certain instructions tendered by her.

Defendants' instruction No. 4, Illinois Pattern Jury Instruction (IPI), Civil, No. 73.01 (2d ed. 1971), given to the jury over plaintiff's objection, is as follows:

"A railroad crossing is a place of danger. If you believe from the evidence that as the decedent was approaching the crossing he knew, or, in the exercise of ordinary care should have known, that a train approaching the crossing was so close to the crossing that it would be likely to arrive at the crossing at about the same time as the decedent's vehicle, then it was the duty of the decedent to yield the right of way to the train."

The committee notes on use advise that this instruction should not be given in cases where the automatic gates were up or the flashing lights were not operating at the time of the accident. Plaintiff contends that since the gates and signals at the South Park crossing were frequently lowered for long periods of time when no trains were approaching, ...


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