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Bassett v. Burlington No. R.r. Co.

OPINION FILED FEBRUARY 28, 1985.

MERLE C. BASSETT, EX'R OF THE ESTATE OF JOHN DAVID ATWOOD, DECEASED, PLAINTIFF-APPELLEE,

v.

BURLINGTON NORTHERN RAILROAD COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County; the Hon. Horace L. Calvo, Judge, presiding.

JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 2, 1985.

A judgment of $700,000 was entered on a jury verdict in the circuit court of Madison County against defendant railroad, Burlington Northern, Inc., in a wrongful death action brought by Merle C. Bassett as executor of the estate of decedent, John David Atwood. The railroad seeks reversal of the judgment, or a new trial, asserting numerous errors for our consideration.

The defendant's first contention is that the evidence failed to support a verdict for the plaintiff and that a directed verdict should have been granted in favor of the railroad. We have summarized the evidence for review in the light most favorable to the plaintiff in order to ascertain whether the verdict should be allowed to stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.

Atwood was killed on the morning of November 30, 1977, when his car struck the engine of a locomotive owned and operated by the defendant. Atwood was eastbound on Energy Mine Road, a gravel-surfaced county road in a rural area in Williamson County. The weather conditions on the morning of the accident caused some problems to motorists. The road was in a slushy, muddy state and a winter fog limited visibility. The extent of the fog and the visibility restrictions were disputed in the evidence, some witnesses describing the fog as patchy or hazy, others stating that the fog was dense or very heavy. Estimates of the range of visibility varied from 100 yards to three-quarters of a mile.

Defendant's railroad tracks intersected Energy Mine Road at a 90° angle, which is described as the safest angle for a railroad crossing. Photographs taken at the scene depict the neighborhood surrounding the crossing as typically rural, devoid of residences or other buildings, and show that visibility was partially obstructed by trees, brush or embankments in three of the four quadrants at the crossing. The approach visibility in the northwest quadrant was affected by an eight-foot spoils bank. One witness estimated that the top one-third of a southbound train would be visible to an eastbound motorist. The grade of the road on which Atwood approached the tracks descended 27 inches within 50 feet of the crossing. Plaintiff's expert testified that the downgrade exceeded desirable safety levels.

The traffic volume at the crossing was 306 vehicles per day, which included passenger cars, school buses, and heavy trucks carrying coal or explosives. There was no posted speed limit on the road, but an Illinois state trooper testified that the limit would be 55 miles per hour. Train traffic averaged five trains per day, with a daily count ranging from zero to nine trains. The railroad set the maximum speed limit for trains over the crossing at 49 miles per hour.

The county highway department had posted advance warning signs to indicate the existence of the crossing. The railroad's warning signal was a wigwag located in the northeast quadrant of the crossing. The wigwag, which consisted of a red electric light surrounded by a black and white metal disk, was automatically activated to light up, swing back and forth, and sound a bell when a train approached the crossing. Neither crossbucks nor electronic flashers were installed at the crossing.

The only witnesses present at the collision were the crew members on the train. Their collective testimony proved that the train involved in the accident, an extra freight train consisting of two locomotive units, six cars and a caboose, was traveling south at 40 miles per hour. As it drew near the crossing, the air whistle was continuously sounded and the wigwag signal was operating. The headlights, illuminated number boards, and classification lights were all lighted and the brakes were in good working order. The locomotive engineer first saw Atwood's car when it was approximately 20 feet from the train, and he saw the car strike the right side of the lead locomotive and land in a ditch.

Virtually no evidence was available to explain or describe Atwood's actions prior to the collision. He was en route to a business appointment, traveling a road which he had used many times in the past. He was not known to have any sight or hearing impairment. No witness offered an estimate of the speed at which he was traveling. The plaintiff made no attempt to rebut or discredit the railroad's testimony concerning the various warning devices and their operation on the day in question, some of which was corroborated by an independent witness. The plaintiff theorized that the accident occurred as a result of inadequate crossing protection, alleging essentially that the circumstances present at the time of the accident necessitated a warning by electronic flashers rather than the outmoded wigwag signal provided by the railroad. To that end, plaintiff offered the testimony of Dr. John Baerwald, a qualified traffic engineering expert. He visited the crossing some six years after the accident and also reviewed information concerning the circumstances of the accident including the condition of the crossing and its protection devices. He concluded that the crossing was inadequately protected and that crossbucks and electronic flashers should have been provided. Three witnesses who were or had been employed by the railroad in supervisory positions each testified that they had recommended or would recommend the installation of electronic flasher signals at the crossing. One of those witnesses explained during cross-examination that wigwag signals were not preferred anymore because they were outmoded and impractical for the railroad in terms of maintenance and the difficulty with replacement parts. He stated that a wigwag signal adequately protected a railroad crossing. Defendant's engineering expert was the sole witness to unequivocally state that the wigwag signal at the Energy Mine Road crossing was an adequate warning device for the protection of motorists.

• 1, 2 A railroad has a common duty to provide adequate warning devices at its crossings. (Stromquist v. Burlington Northern, Inc. (1983), 112 Ill. App.3d 37, 444 N.E.2d 1113; Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1970), 121 Ill. App.2d 445, 257 N.E.2d 216, aff'd (1971), 49 Ill.2d 118, 273 N.E.2d 809.) Where there is any evidence tending to show that an extrahazardous condition existed at the crossing, it is for the jury to determine whether the railroad should have provided additional warnings. (Baker v. Norfolk & Western Ry. Co. (1970), 120 Ill. App.2d 296, 256 N.E.2d 887; Gibson v. Nenne (1954), 2 Ill. App.2d 158, 118 N.E.2d 788.) All railroad crossings present a danger to motorists, and not every additional peril will impose a greater duty on the railroad. Each case must be decided independently by the jury, whose task it is to determine, from the circumstances in existence at the particular crossing at the particular time the vehicle approaches, whether the crossing is extrahazardous and the amount of protection required. First National Bank v. Illinois Central Gulf R.R. Co. (1978), 62 Ill. App.3d 36, 378 N.E.2d 1329.

• 3 In order for the jury to assess the questions of hazard and protection, the courts have enumerated various factors to take into consideration. As listed in Baker v. Norfolk & Western Ry. Co. (1970), 120 Ill. App.2d 296, 256 N.E.2d 887, they are physical obstructions to vision, volume and speed of vehicular and train traffic, track arrangement, intersecting driveways and roadways, angles at which roadways intersect the tracks, character of the highway, width of the crossing, track elevation, character of the surrounding neighborhood, and sight distance. In the instant case, the trial record contains sufficient evidence for the jury to evaluate the danger at the crossing in light of the Baker factors and to conclude that special perils existed. Additionally, the expert witnesses called by the parties evaluated the Energy Mine Road crossing utilizing most of the Baker components and offered their disparate opinions as to the adequacy of the wigwag signal under the conditions existing at the time of the accident. It was within the jury's province to accept or reject their proffered opinions, and we are constrained to accept the decision under the Pedrick rule.

• 4 Defendant also asserts that the issue of the adequacy of protection was wrested from the jury when the court gave ...


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