Appeal from the Circuit Court of Madison County; the Hon.
William E. Johnson, Judge, presiding.
JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:
This appeal arises from a railroad crossing accident that occurred on the morning of January 28, 1978, when a vehicle driven by Richard Bradfield was struck by a train near Lostant. The collision resulted in Bradfield's death. The circuit court of Madison County entered judgment on a jury verdict in the amount of $175,000 in favor of plaintiff, Winifred Bradfield, administrator of the estate of Richard Bradfield. Defendant, Illinois Central Gulf Railroad Company, appeals. We affirm.
The facts are as follows:
At approximately 8 a.m. on January 23, 1978, Mr. Bradfield was traveling east on a road perpendicular to the railway, approximately one-quarter mile south of the town of Lostant. The weather was clear and the sun was shining. The rural crossing was protected only by a railroad "crossbuck" sign.
The train that struck Mr. Bradfield's truck consisted of a snowplow, an engine, one car, and a caboose, and was moving at approximately 20 to 22 miles per hour in an attempt to clear snow from the tracks.
A crew member of the train, Burnell Brown, testified that there was a headlight on the front of the snow-plow and two headlights on the front of the engine, one of which was a strobe light, and that the lights were on at the time of the accident. Mr. Brown and another crewmember, Timothy Martz, both testified that the train had passed a whistle mark one-quarter of a mile south of the crossing where the accident occurred and that from that point they rang the bell and sounded the whistle until they reached the crossing. Mr. Brown explained that while plowing snow it is essential to frequently sound the whistle in order to keep it from clogging with snow.
However, the testimony of the railroad train crew that the required crossing whistle pattern (two long blasts, then a short blast, and then another long blast) was blown at the quarter-mile mark before the crossing was contradicted by Winifred Bradfield, the decedent's widow. The Bradfield home was next to the railroad tracks where the accident occurred. Mrs. Bradfield testified that she heard the train coming down the tracks and a frantic blow of the whistle immediately before the crash.
The trial court, over objection of defendant, permitted plaintiff to introduce the testimony of Winifred Bradfield and Jeffrey Bradfield, decedent's son, that on other occasions, prior to the occurrence in question, other train crews of the Illinois Central Gulf Railroad had failed to sound a whistle or horn when approaching the crossing in question. Instead, they would blow their whistle after they went over the crossing as they were entering the town of Lostant. (The required train whistling procedure is for the whistle to be blown continuously for approximately one-quarter mile from a crossing until the train has gone through the crossing.)
The trial court also allowed plaintiff's motion to bar the testimony of Thomas Berns, a registered professional engineer, regarding measurements of sight distances at the crossing because defendant had failed to disclose Berns' identity until the commencement of trial.
• 1 Defendant first contends that the court erred when it allowed decedent's wife and son to testify that on other occasions, prior to the occurrence in question, other train crews of the Illinois Central Gulf Railroad Company had failed to sound a whistle or horn when approaching the crossing in question.
We agree with defendant that our current rule regarding "habit" testimony is that it is permitted in wrongful death cases where there were no eyewitnesses to the accident. (Gardner v. Geraghty (1981), 98 Ill. App.3d 10, 15, 423 N.E.2d 1321, 1325.) However, this view has been criticized because its premise is the "superior" reliability of eyewitness testimony. (For an exhaustive discussion of the trend to remove the requirement that there be no eyewitnesses before a habit of specific conduct is introduced into evidence see Glatt v. Feist (N.D. 1968), 156 N.W.2d 819.)
Louisell, Kaplan, and Waltz, citing Lilly, An Introduction to the Laws of Evidence 121-24 (1978), aptly state: "The case for habit evidence especially is strong when the eyewitness is one of the parties (or identified with one of the parties) and evidence of habit is offered by the adversary." (Louisell, Kaplan & Waltz, Cases & Materials on Evidence 337 (4th ed. 1981).) Such is the case at hand. There were no impartial witnesses to the accident. The eyewitnesses were all employees of the railroad and the evidence of habit was offered by the Bradfields.
The court in Glatt v. Feist commented persuasively upon circumstances similar to those in the case at bar:
"In State v. Manchester and Lawrance Railroad (1873), 52 N.H. 528, a suit was prosecuted for negligent homicide which occurred upon a railroad crossing and the evidence was in conflict as to whether the engineer and fireman of the railroad sounded the whistle or rang the bell. The court held that testimony was admissible as to the same train run by the same engineer and fireman having sometimes passed the train crossing without sounding the whistle or ringing the bell, as tending to show the same men would be more ...