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Lubbers v. Norfolk & Western Ry. Co.

OPINION FILED NOVEMBER 30, 1984.

DELBERT LUBBERS, APPELLEE,

v.

NORFOLK AND WESTERN RAILWAY COMPANY, APPELLANT.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Macon County, the Hon. John L. Davis, Judge, presiding.

JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 1, 1985.

On July 20, 1977, Delbert Lubbers drove a grain truck through flashing signal lights at a railroad crossing and collided with a Norfolk & Western train. The train's engineer was killed, Lubbers and the train's brakeman suffered severe injuries, and the truck was destroyed and the train damaged. Lubbers filed suit in the circuit court of Macon County against Norfolk & Western (Norfolk), the brakeman and the engineer's estate. Norfolk counterclaimed against Lubbers, and in December 1979 the jury found that Lubbers was negligent and awarded the railroad $650 and Lubbers nothing on the basis of that finding. Judgment was entered on this verdict and was affirmed by order of the appellate court. Lubbers v. Norfolk & Western Ry. Co. (1980), 89 Ill. App.3d 1205 (Rule 23 order).

This appeal concerns Lubbers' attempt under section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401) to set aside the judgment and obtain a new trial. His petition, filed September 15, 1982, in the Macon County circuit court alleged that Norfolk knowingly gave false answers to interrogatories, gave false testimony at trial, and used threats to assure the silence of a witness who had knowledge of the subject matter of the false testimony and whose name should have been included in, but was withheld from, the answer to an interrogatory. The petition further stated that Lubbers' counsel first learned of these circumstances fortuitously on March 5, 1982, after being approached by the witness concerning another matter, that the failure to discover them earlier was not due to lack of diligence on Lubbers' part, and that the verdict against Lubbers would probably not have been entered had the foregoing information been available at trial. The circuit court dismissed the petition and denied Lubbers leave to amend. The appellate court, in a divided opinion, reversed and remanded on the authority of our opinion in Ostendorf v. International Harvester Co. (1982), 89 Ill.2d 273. The dissenting judge took the position that the newly discovered evidence had no bearing on the finding that Lubbers was himself negligent, which, under the law as it existed before Alvis v. Ribar (1981), 85 Ill.2d 1, would have completely barred his recovery. (118 Ill. App.3d 705.) We granted leave to appeal (87 Ill.2d R. 315).

The complaint filed by Lubbers in 1977 charged Norfolk with negligence in failing to provide adequate warning of the approach of a train at its crossing in Oakley, failing to maintain the warnings that were provided in a condition free from defects, and failing to repair a crossing signal which it knew or should have known to be defective. It alleged that Lubbers himself exercised due care at all times. After Norfolk filed an answer to the complaint denying these allegations and counterclaiming for damage to the train based on Lubbers' negligence in crossing the track against an operating signal, Lubbers' attorney presented Norfolk with a series of interrogatories concerning the extent of Norfolk's knowledge of a defective condition at the Oakley crossing prior to the accident. Norfolk answered "yes" to a question concerning whether the signals at the crossing were "functioning at the time of the accident." The next interrogatory sought the names and addresses of all persons who observed the signals at that time and the nature of their observation. In its response Norfolk named 10 individuals who saw the crossing lights flashing on the day of the accident, and in addition stated, "Signals checked on July 6, 1977, by David F. Flannell, * * * were found to be operating as intended." The response did not mention Richard Polley, a signal maintenance man employed by Norfolk, or Donald Patterson, assistant superintendent of Norfolk's Decatur division.

Another interrogatory asked if there was an established schedule for checking the functioning of the Oakley crossing signals and requested information concerning "what the schedule was, the last date the signals * * * were checked, in what manner were they checked and what were the findings." Norfolk responded "yes" to the first part of the question and went on to state:

"(b) Flashers are checked every two weeks

"(c) 7/6/77

"(d) Drop crossing relay of serving operation of all lights with AC power off. Observe operation of all lights with AC power on. Reenergize X.R."

In a separate request for discovery, Lubbers' attorney asked Norfolk to produce at trial "[a]ll records in [your] possession regarding: * * * b. All maintenance and repairs made to said flashers or bells [at the Oakley crossing] from 1966 to date." Norfolk produced a document which was identified at trial as the log book of David Flannell, the signal maintainer in charge of inspecting the signals at the Oakley crossing. The document contained ledger entries indicating twice-monthly inspection of the crossing; it showed an entry for July 6, 1977, with the notation "OK" beside it, and showed similar entries indicating inspections and "OK"'s at roughly two-week intervals for each of the preceding 12 months. Flannell asserted at trial that he made each entry as a record of an inspection and testified concerning the nature of the various kinds of inspection which the log book indicated for various dates. He stated that the notation "OK" meant that he found nothing wrong with the crossing signals following an inspection.

At trial Lubbers testified that on the day of the accident he was hauling a truckload of grain to Peoria and was forced to take an unfamiliar route. Before he started out he was warned by the farmer whose grain he was hauling that the east-west road he would take into Oakley made a "bad and dangerous" crossing over a railroad track. The testimony does not indicate that he was told anything more specific about the crossing. His testimony and that of several other witnesses established that the crossing in question was dangerous because of the narrowness of the road, the elevation of the track area slightly above the ordinary level of the road, and the angle at which the tracks crossed the road, which was so acute that the Oakley crossing was commonly referred to as "Angle Crossing." Lubbers and the farmer both testified that the sharp angle made it very difficult to see down the tracks to the right, and that the difficulty was compounded by the height of the corn along the side of the road and by the bed of Lubbers' truck. According to Lubbers' testimony, which was generally corroborated by the farmer who was following Lubbers to Peoria in his own truck, Lubbers was traveling northward toward the east-west road when he glimpsed a train moving at about 45 to 55 miles per hour in a south-westerly direction along a track somewhere beyond the east-west road. He lost sight of the train after turning onto the east-west road and did not observe it cross the Oakley crossing, but he first saw the crossing lights flashing when he was about a quarter mile from them. He proceeded westward toward the crossing at 20 miles per hour, and when he reached the crossing the lights were continuing to flash but no train had come. He maneuvered his truck into a position perpendicular to the tracks and noticed, to the left, that the southwest-bound train he had observed had passed through the crossing some time earlier and that there were no northeast-bound trains coming. He looked twice to the right, the direction in which his view was obstructed, and could see about a quarter mile up the tracks but saw and heard nothing denoting the approach of a train. He proceeded across the tracks, and as he was doing so he heard a train whistle and almost immediately afterward was hit by a southwest-bound train which had come from the direction in which he was looking.

A witness testified that he had crossed the Oakley crossing at 2:30 p.m. and 11:30 p.m. on the day before the accident and that on both occasions the crossing lights were flashing but no train came. The farmer whose grain Lubbers was hauling testified that in the early morning of the day of the accident he observed signal lights flashing at three different crossings of the same Norfolk line in Cerro Gordo, three miles northeast of the Oakley crossing, but no train came. David Flannell testified when called as an adverse witness by Lubbers that inclement weather might so saturate the ballast around the rails as to close the electrical circuit in the signal-triggering device between the rails and cause the lights to flash in the absence of a train. The day of the accident, however, was described as sunny.

The jury answered "yes" to a special interrogatory asking if Lubbers' own negligence was a proximate cause of his injuries, and awarded ...


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