Appeal from the Circuit Court of Cook County; the Hon. Alfred
T. Walsh, Judge, presiding.
JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
The plaintiff, Kathleen Tonarelli, as the administratrix of the estate of George Tonarelli, brought an action for the wrongful death of George Tonarelli against the defendant, the Chicago, Rock Island and Pacific Railroad Company, a corporation (Rock Island). *fn1 George Tonarelli died when he drove a pickup truck onto the tracks at a railroad crossing and was struck by a Rock Island passenger train. The jury returned a $1,500,000 verdict for the plaintiff. The jury further found, under the doctrine of comparative negligence, that the decedent was 25% negligent. Accordingly, it reduced the verdict to $1,125,000. The trial court entered judgment on the verdict, and defendant appeals. The issues presented for review are: (1) whether the trial court erred in giving Illinois Pattern Jury Instruction (IPI), Civil, No. 5.01 (2d ed. 1971); (2) whether the evidence was sufficient to support the jury's finding; (3) whether remarks in the plaintiff's closing argument were improper; (4) whether the court erred in refusing to give an instruction on the taxability of the award; (5) whether the verdict was excessive as a matter of law; and (6) whether the doctrine of comparative negligence as applied in this case violated the defendant's constitutional rights.
On September 22, 1969, George Tonarelli was driving south on Ridge Road in the western outskirts of Minooka, Grundy County, Illinois. The Rock Island train, consisting of a 15-foot-high diesel engine and six passenger cars, was traveling east at approximately 80 miles per hour. They collided at the Ridge Road crossing at 9:07 a.m. The truck left no skid marks on the pavement.
Ridge Road, which runs in a north-south direction, is a two-lane blacktop road with a speed limit of 35 miles per hour. Approximately 300 feet north of the crossing, a black and yellow sign warns southbound drivers that they are approaching a railroad crossing. A stop sign is posted about 400 feet north of the crossing at the intersection of Minooka and Ridge Roads. The two Rock Island tracks at the crossing run in an east-west direction, and begin a slight curve in a southwest direction about 300 feet west of the crossing. Whistle posts are stationed 368 and 363 feet west of the crossing. Two sets of red lights, designed to begin flashing 20 seconds before an eastbound train reaches the crossing, are mounted on stanchions in the northwest and southeast quadrants of the crossing. Each stanchion also supports a black and white railroad crossbuck warning sign and a rectangular sign advising that the crossing has two tracks. In 1969, 42 freight trains and eight passenger trains came through the crossing each day. The maximum train speed allowed by the railroad was 79 miles per hour.
No eyewitness to the accident testified at trial. The engineer of the train, Edward Johnson, died before the trial, and was dismissed as a defendant. The train fireman, Lee Horst, who rode in the engine at the time of the collision, was originally named a defendant. At the close of the plaintiff's case, defendant's motion for a directed verdict in favor of Horst was granted. Plaintiff did not object to the motion.
John Baerwald, a traffic engineer, testified as an expert for the plaintiff. He said that the number of cars and trains passing the Ridge Road crossing daily in 1969 made the crossing extrahazardous and justified the installation of gates. He stated that "severe sight restrictions" existed at the crossing, such as vegetation, trees, brush, weeds and the railroad embankment. He believed that these restrictions would not give a motorist approaching at 35 miles per hour "an adequate sight distance" to prepare to stop for a train reaching the crossing at 79 miles per hour.
Bernard Morris, acting chief railroad engineer for the Illinois Commerce Commission, testified as an expert witness for the defendant. He admitted that if the Ridge Road crossing were built in 1969 with Federal funds, gates would have been required. He further indicated that he would have recommended gates with flashing lights at a double-track crossing with sight distance restrictions, speed limits and a vehicular/train traffic product identical to those at the Ridge Road crossing.
Richard McTague, the Grundy County superintendent of highways, testified that in January 1969, he began to seek Federal funding to install gates for added protection at the Ridge Road crossing.
At his death, Tonarelli was 25 years old, with a life expectancy of 47.1 years. He owned a house, was married, and had two children. Tonarelli's widow and son testified that he was a good husband and father. Two of Tonarelli's former employers testified that he was an ambitious, hard-working individual with safe driving habits. Tonarelli had been paid $200 a month to clean offices at night and on weekends, and had earned about $160 a week for three weeks as a truck driver at Meade Electric Company in Joliet. Prior to that, he was paid less than $4 an hour to work in the warehouse at Norris Electric Company. He had told three of the witnesses that he wanted to be an electrician, and one witness testified that Tonarelli had left Norris Electric Company to pursue that goal. At the time of trial, electricians in Joliet earned $17.40 an hour, and truck drivers at Meade Electric Company earned from $7.33 to $9.46 an hour.
A verdict of $1,500,000 against the Rock Island was returned by the jury. They also found that, under the doctrine of comparative negligence, the decedent was 25% negligent. Therefore, the jury awarded $1,125,000 to the plaintiff.
• 1 The defendant contends that the trial court erred in giving IPI Civil No. 5.01, which reads as follows:
"If a party to this case has failed to produce a witness within his power to produce, you may infer that the testimony of the witness would be adverse to that party if you believe each of the following elements:
1. The witness was under the control of the party and could have been produced by the exercise ...