Appeal from the Circuit Court of Cook County; the Hon. John M.
Breen, Jr., Judge, presiding.
JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 4, 1986.
Plaintiffs, Eyvette Lee and four minor children, brought this action against defendants Grand Trunk Western Railroad and Eulice Davis, its engineer, seeking to recover for injuries sustained in a collision with a train. Plaintiffs were passengers in an automobile owned by Lee and operated by John Flennoy which was struck by a Grand Trunk train operated by Davis. A jury returned a verdict in favor of all plaintiffs, and awarded damages totaling $2,617,475. The trial court denied defendants' post-trial motions and entered judgments on the verdicts. Defendants appeal. Flennoy had been a plaintiff in this action, but prior to trial his suit was voluntarily dismissed.
The accident occurred at the railroad's intersection with 147th Street in Harvey, Illinois. At the crossing, 147th Street is a four lane paved street which runs east and west. There are two sets of railroad tracks in a generally southeastern to northwestern direction at 147th Street. The intersection is a grade crossing, equipped with gates, bells and flashing lights. The gates and lights are activated by an electrical mechanism located just north of the 150th Street intersection. The lights and gates were functioning properly on the evening of the accident.
The 147th Street crossing is located in an industrial and residential area. From 155th to 147th streets, a distance of approximately 1 1/2 miles, there are seven railroad crossings. As a train approaches from the southeast, there is a curve before 150th Street. The track then proceeds straight for about a mile to 147th. Ashland Avenue is between 147th and 150th streets. There is a clear view of the 147th Street crossing from 150th, but the gate on the eastern side of the crossing is partially obstructed by a small metal building for railroad circuits. At the northeastern corner of the 147th Street intersection, approximately 20 feet from the crossing, there is a small guardhouse maintained by Wyman-Gordon industries.
On the evening of February 7, 1981, Grand Trunk train number 393 was proceeding north from Harvey to Elsdon Station, Illinois. The freight train had originated in Battle Creek, Michigan, and was enroute to its Elsdon destination. After leaving Harvey, the train consisted of 41 cars, each approximately 50 feet long. It was a dark, clear evening. The engine was equipped with a strobe light for waning and a headlight which projects 600 to 800 feet.
At approximately 9 p.m., the automobile being driven by Flennoy was traveling westbound on 147th Street. Lee was seated in the front seat. The four minor plaintiffs were seated in the back seat. They were all returning to Lee's mother's home after a family gathering. The train struck the rear of the Lee vehicle on the driver's side, and Lee and the children were seriously injured.
Lee testified that about a block before the automobile reached the crossing, she turned around to look at the children in the back seat. Before she turned around, the crossing gates were up and no warning lights were flashing. The automobile was moving slowly because the crossing was bumpy. While her vehicle was on the tracks, it stalled and Flennoy tried to restart it. Lee turned and moved toward the door when she saw the approaching train. She tried to get out, but was unsuccessful. Lee did not recall seeing the gates or lights after she turned to look after the children. She did not hear the train sound its horn. Lee lived with Flennoy and allowed him to drive her automobile.
Plaintiff called several Grand Trunk employees as adverse witnesses. Defendant Davis had been a locomotive engineer for 25 years and was familiar with the area where the accident occurred. Davis estimated the train's speed at 35 miles per hour as it approached 147th Street. After coming out of the curve at 150th Street, Davis had a clear view of the 147th crossing. As Davis approached the crossing, he was sounding the train's standard crossing whistle. He sounded the whistle at each of the seven crossings in the area. Davis was seated on the right side of the engine's cab and operated the whistle by pulling a lever on the left with his left hand. The whistle lever was six to eight inches from the automatic brake valve lever also located to his left and operated with his left hand.
Before seeing the vehicle move onto the crossing. Davis saw the lights flashing and gate down on the west side of the 147th Street crossing after the curve at 150th Street when the train was south of Ashland Avenue. Davis's view of the lights and gate on the east side was briefly obscured by a small building. When the train was north of Ashland, Davis saw the Lee vehicle move west onto the crossing from the east and stop on the tracks approximately 150 to 200 yards away. Davis initially testified that he kept blowing the whistle until he took his hand off that lever and put the train into an emergency stop. He did not know how long the vehicle had been stopped before he put the train into emergency. He subsequently stated that he put the train into emergency as soon as he saw the Lee vehicle stop. Davis also testified that the whistle sounded all the way up to impact. He did not hear the brakeman speak to him because he was blowing the whistle.
Immediately before impact, Davis saw the lights flashing and gate down on the east side of the crossing. When impact occurred, the Lee vehicle was at an angle on the tracks, with its back part facing the train. After impact, the auto was pushed west onto the other set of tracks. Ten or fifteen railroad cars passed over 147th Street before the train stopped. Davis testified that sometimes a tape is placed on a train which automatically records the speed of the train. The speed tape is locked and sealed; the engineer does not have access to it. Davis did not know if there was a speed tape on the train in question.
Raymond Petch, the train's brakeman, sat in the seat on the left side of the engine cab. It was his job to watch for traffic in front and on both sides of the train. When the train was just north of 150th Street, Petch saw the lights flashing and the gates down on both sides of the crossing. The train was traveling at about 30 to 35 miles per hour or about 50 feet per second. Petch noticed the automobile stalled on the tracks approximately 10 to 15 train car lengths or 500 to 750 feet away from the oncoming train. Petch did not see the vehicle drive onto the tracks. When Petch saw the vehicle, he turned to Davis and said that he did not think the vehicle was going to move. Davis assured Petch that he was aware of and in control of the situation and kept blowing the whistle. Some seconds after Petch warned Davis, Davis put the train into emergency stop. Petch stated that there was no way the train could have stopped in time to avoid hitting the Lee vehicle. Petch arose and moved to the center of the train because he did not want to get hit by debris from the imminent collision. Petch did not reach over to apply the engineer's brake or activate his own emergency brake while Davis was blowing the whistle. Petch would have to move seven to eight feet to reach the engineer's brake.
The two brakemen riding in the train's caboose did not see the collision, but testified that the train was traveling about 30 miles per hour before the emergency stop. The conductor, John Moore, stated that the train stopped 15 to 20 car lengths past the 147th Street crossing. After the collision, Moore saw the Lee vehicle two car lengths north of the crossing on the other tracks. Billy Farrer, an employee of Wyman-Gordon, was working in the guardhouse located about 70 feet northeast of the intersection. Farrer did not observe the collision, but was informed of the accident by another employee, Alvin Miller, and saw the vehicle being pushed down the track on the front of the train.
Alvin Miller testified that he previously had been employed by the Illinois Central Gulf Railroad and at the time of the occurrence was working as a security guard for Wyman-Gordon. Miller heard the train's whistle, saw the train's headlight and saw the gates go down on both sides of the crossing. The gates and flashing lights were activated for 1 1/2 to two minutes before the collision. Miller observed the Lee vehicle stop four feet from the westbound gate for about 90 seconds. When the train was 100 to 150 feet from the crossing, the auto went around the gate and started to go across the tracks. The vehicle turned to the left to circumvent the gate, then turned right and proceeded at an angle over the crossing. Miller thought that the Lee vehicle was trying to go around the gate and yelled at the driver to stop. The vehicle stalled on the tracks at a northwest angle and the driver's side was struck by the train. Miller testified that the train's speed was 30 to 40 miles per hour, although in a statement to Grand Trunk soon after the incident, he estimated the speed at 35 to 45 miles per hour. Miller further testified that the train's whistle was blowing the entire time, even until impact.
Pamela Young testified for plaintiff by means of an evidence deposition that she was proceeding west on 147th Street the evening of the occurrence. Traffic was heavy and there were three vehicles ahead of her in line at the crossing. The Lee vehicle drove slowly into the intersection at an angle because the surface was rough. After the auto was on the tracks, it stalled and then the gate came down and the lights started flashing. She did not hear the train's whistle or see its lights before the vehicle went on to the tracks. The second car in line backed up to avoid the gate, and hit the car immediately behind it. It then turned around and went in the opposite direction because there was not enough space before the crossing. The third car also backed up and struck Young's vehicle. After Young saw the collision, she went to the guardhouse and asked the employees to call the police. When the police arrived, she related to them what she had seen.
Gregory DeGroot, a paramedic, attended to the injured at the scene. He testified that Flennoy was intoxicated because he could smell alcohol on Flennoy's breath. Flennoy was uncooperative and pulled out an I.V. which had been taped on his arm. At his deposition, DeGroot testified that he smelled alcohol on Flennoy but could not determine whether Flennoy was intoxicated or if he was in a state of emotional shock from the accident. Flennoy had a head injury and did not talk to the paramedics.
Dr. Eugene Saltzberg, emergency room physician, treated Flennoy for 20 minutes, and sutured a facial laceration. Dr. Saltzberg testified that he thought Flennoy was intoxicated. He based this opinion on Flennoy's slurred speech, hostile attitude, and the smell of alcohol. Flennoy angrily requested that the doctor not ask him any more questions about the accident. Dr. Saltzberg conceded that it was understandable that Flennoy would not want to discuss an accident in which four young children were seriously injured. Dr. Saltzberg stated that Flennoy's slurred speech could possibly have resulted from the facial injuries he suffered, and that the trauma Flennoy experienced could affect his speech, manner and behavior. Dr. Saltzberg made no entry in the hospital records that Flennoy smelled of alcohol, was hostile, had slurred speech or was inebriated.
Officer Roger Douglas of the Harvey police department interviewed Lee approximately one hour after the accident at the hospital emergency room. She told Douglas that the automobile went around the railroad gates. Douglas interviewed Flennoy, detected no odor of alcohol on Flennoy and concluded that he was not under the influence of alcohol. Lee denied having had a conversation with Douglas, and did not tell Douglas that her auto went around the gates. She also stated that Flennoy was not intoxicated.
Several Grand Trunk employees testified about the alleged speed tape and the functioning of the crossing devices. Joseph Waldecker, supervisor and road foreman, stated that 50% of the locomotives are equipped with speed tapes. The train's engineer does not know if the tape is recording his speed, and only the maintenance department can remove the tape. Waldecker stated that there was no speed tape on the train in question although it was equipped with a recorder. In his attempt to determine if a tape existed, Waldecker had not discovered an accident report filed by E.L. Camire, a Grand Trunk employee. The report stated: "speed tape removed at Elsdon roundhouse"; or another report stating: "crew interviewed at Elsdon, speed tape removed at Elsdon ...