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Magnone v. Chicago & N.w. Trans. Co.





Appeal from the Circuit Court of Cook County; the Hon. Alfred T. Walsh, Judge, presiding.


Rehearing denied August 16, 1984.

Plaintiff brought an action for damages against defendant (the Railroad) and several of its employees for the wrongful death of her son. Following a bench trial, the Railroad was found negligent, and plaintiff's decedent was found 25% comparatively negligent. Judgment was entered in the sum of $155,854.14, gross damages reduced by 25%. Judgment was entered against plaintiff in favor of the Railroad's employees.

The Railroad appeals, claiming that the trial court's decision was against the manifest weight of the evidence. Plaintiff cross-appeals from the finding that her decedent was 25% comparatively negligent.

We affirm the decision of the trial court.


On October 12, 1978, at approximately 10 p.m., plaintiff's decedent was driving northbound on Wolf Road in Des Plaines, when he approached the railroad crossing of defendant, Chicago and North Western Transportation Company (Railroad). The crossing is guarded by automatic gates positioned to the immediate north and south of the tracks. Each gate is equipped with a bell, two pairs of red lights on each of three posts, and three additional individual red lights on the arm of each gate. Ideally, when activated by an approaching train, the bells sound, the red lights flash, and the arms gradually lower to extend across the two northbound lanes south of the crossing, and the two southbound lanes north of the crossing, thereby blocking access to the tracks.

Plaintiff's first witness, James Johnston, a 41-year-old flight engineer for United Airlines, was present at the Wolf Road crossing at the time of the accident. Johnston stated that he routinely drives southbound on Wolf Road to get to work each evening.

On the evening of the occurrence, as Johnston approached the crossing, he noticed the red lights at the intersection begin flashing. As he started to slow down his car, he saw a train coming from his left at a speed of approximately 20-30 miles per hour, one-half block to 100 yards away. He noted that the arm of the gate was operating in an unusual manner, moving in a "slow hesitating motion." Johnston stated that as he came to a stop, the arm continued to haltingly lower, bouncing approximately 1 1/2 feet before it came to a final resting position. Moreover, he stated that the train was actually entering the intersection and crossing the roadway before the arm was stationary.

Johnston recalled that while he was stopped facing southbound immediately prior to the occurrence, the speed of the descending crossing arm was abnormally slow. He stated that the reason he had specifically noted the slow speed of the arm was that he had been "playing a mind game in [him]self" thinking that he "could make it too [across the tracks] if [he] wanted to with no intention of doing it." Johnston was thinking this as he observed the headlights of decedent's car coming towards him from the opposite northbound lane, approximately one-half second prior to the collision.

Kendel Okon, a high school acquaintance of decedent's, was present at the Wolf Road crossing as a passenger in her father's van at 7:30 a.m. the morning of the collision. Okon testified that her father stopped the southbound van as it reached the railroad crossing because the arm of the gate started to lower. She noted that the arm, rather than making a smooth descent, went up and down three times before coming all the way down. She also observed that the arms of both the north and south gates were going through the same up and down motion.

Okon testified that after the gates finally came down, her father waited for a train to come, but no train ever came through the crossing. After five minutes of waiting, Okon's father maneuvered around the still-lowered crossing arm and across the intersection.

Kurt Rossberger, a 28-year-old salesman, was an eyewitness to the collision. Rossberger was stopped in the inside southbound lane of the Wolf Road crossing, waiting for the approaching train to cross the intersection. There were no cars stopped in front of him. He had stopped in response to the red lights flashing and the gates beginning to lower. As he waited at the crossing, Rossberger noticed the headlights of decedent's car bobbing up and down as they faced him from the inside northbound lane. This bobbing motion gave Rossberger the impression that decedent's car was up on the railroad tracks. Rossberger could not recall if the south gate was down at the time of the collision. Rossberger testified that 10 seconds elapsed between the time the gates were finally down and the train entered the intersection.

Henry DePaepe, an employee of defendant Railroad since 1948, was leading maintainer in charge of the Wolf Road crossing in October 1978. He testified that he was called to examine the crossing one hour after the collision and that he conducted the examination alone. DePaepe's examination consisted of "shunting the gates," triggering the gates by placing a wire across the tracks to de-energize the relay rather than observing the operation of the gates in response to the actual approach of a train. He "shunted the gates" at three different distances from the crossing. At the first shunting, he could not observe the gates and determined that the crossing was operating "just by hearing it." At the second shunting, some 500 feet from the crossing, he observed that the north gate, which blocked the southbound traffic, "went down." He still did not observe the south gate, ...

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