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Lubbers v. Norfolk & Western Ry. Co.





Appeal from the Circuit Court of Macon County; the Hon. Scott B. Diamond, Judge, presiding.


Rehearing denied October 24, 1986.

Defendant appeals an order of the circuit court awarding plaintiff a new trial. Plaintiff cross-appeals arguing that the circuit court should have imposed severe sanctions on defendant for its discovery violations. The facts are set forth below in detail.

On August 12, 1977, plaintiff, Delbert Lubbers, filed a complaint in the circuit court of Macon County against defendant, Norfolk & Western Railway Company, seeking damages for injuries he suffered when a truck he was driving was struck by one of defendant's trains. Defendant filed a counterclaim against plaintiff seeking compensation for the damage to its train. The following facts were set forth at trial.

On July 20, 1977, plaintiff was hauling a truckload of grain to Peoria and was forced to take an unfamiliar route. Prior to beginning the trip he was warned by the farmer whose grain he was hauling that the road he would travel into Oakley made a "bad and dangerous" crossing over a railroad track. The record does not reflect that plaintiff was told anything more specific about the track.

The Oakley crossing was known as "angle crossing" because of the sharp angle at which the road upon which plaintiff was driving crosses defendant's tracks. Both the road and the tracks generally run in an east-west direction. Testimony indicted that the sharp angle of the crossing made it difficult for persons traveling westward to see down the tracks to the right. This difficulty was increased by the height of the corn alongside the road and by the bed of plaintiff's truck.

According to plaintiff's testimony, which was generally corroborated by the farmer who was following plaintiff to Peoria in his own truck, plaintiff was traveling northward toward the east-west road when he glimpsed a train moving at about 45 to 55 miles per hour in a southwesterly direction along a track somewhere beyond the east-west road. After turning onto the east-west road, plaintiff lost sight of the train and did not observe it cross the Oakley crossing. When he was about one-quarter mile from the Oakley crossing, plaintiff observed the crossing signals flashing. Proceeding westward toward the Oakley crossing, plaintiff observed that the crossing signals 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 train he had observed earlier had passed the crossing. He looked to the right twice, but his vision was obstructed. He also slid over in his seat to get the best view possible. Plaintiff could see about one-quarter mile down the tracks to the right, but he neither saw nor heard anything to indicate that a train was approaching from that direction. As plaintiff was proceeding across the tracks, he heard a train whistle and was hit by a train coming from the right almost immediately afterwards. The train's engineer was killed, plaintiff and the train's brakeman suffered severe injuries, the truck was destroyed, and the train was damaged.

Evidence of the operation of the crossing signals on other occasions was admitted. A witness testified that he had crossed the Oakley crossing at 2:30 p.m. and 11:20 p.m. on the day before the accident and that on both occasions the crossing signals were flashing but no train came. The farmer whose grain plaintiff 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 line a few miles east of the Oakley crossing but no train came. When called as an adverse witness, David Flannell, the signal maintainer in charge of inspecting the signals at the Oakley crossing, testified that inclement weather might so saturate the ballast around the rails as to close the electrical circuit in the device which triggers the signals and cause the lights to flash in the absence of a train. The day of the accident, however, was described as sunny. Evidence showing that the crossing signals had been malfunctioning on other days was excluded as was evidence showing that plaintiff had crossed other railroad crossings safely while the signals were flashing.

At the conclusion of the trial, the jury returned a verdict in favor of defendant. The jury answered yes to a special interrogatory asking if plaintiff's own negligence was a proximate cause of his injuries. Plaintiff was awarded nothing, and defendant was awarded $650. Judgment was entered on the verdict. That judgment was affirmed on appeal. Lubbers v. Norfolk & Western Ry. Co. (1980), 89 Ill. App.3d 1205 (order under Supreme Court Rule 23) (Lubbers I).

Slightly more that two years after judgment was entered on the verdict, Richard Polley informed plaintiff's attorney that he had inspected the signal at the Oakley crossing shortly after the accident and discovered that the signal-inspection card in the crossing-signal control case contained no reports of inspections for six weeks prior to the accident. When he showed the card to his supervisor, the supervisor took the card away from him and warned him not to say anything about it to anyone if he wished to keep his job.

On September 15, 1982, plaintiff filed a petition pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401) requesting that the judgment on the verdict be vacated and a new trial granted. Polley's affidavit was attached to the petition. As grounds for the petition, plaintiff alleged that defendant gave false answers to interrogatories requesting the names and addresses of all persons who observed the signals at the time of the accident and the most recent date the signals were checked. Plaintiff also alleged that the inspection record provided to him in response to a request for production had been falsified or altered. The circuit court allowed a motion to dismiss the petition and denied plaintiff's request for leave to file an amended petition.

On appeal this court reversed and remanded. (Lubbers v. Norfolk & Western Ry. Co. (1983), 118 Ill. App.3d 705, 454 N.E.2d 1186 (Lubbers IIA).) We held that the allegations of defendant's fraudulent conduct tolled the requirement of section 2-1401 that the petition be filed within two years of the entry of the judgment and negated any implication that plaintiff had failed to exercise diligence in filing the petition. We held further that the allegations of defendant's fraudulent conduct and false testimony set forth grounds, if found to be true, for vacation of the judgment. One justice dissented, noting that even if plaintiff's allegations were true, the outcome would not have been different since the inspection data concealed by defendant would have no relevance to the bar presented by plaintiff's contributory negligence.

On further review, the Illinois Supreme Court affirmed our decision and remanded the cause to the circuit court with instructions to grant plaintiff leave to amend his petition if he so desired. (Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill.2d 201, 473 N.E.2d 955 (Lubbers IIB).) The supreme court held that plaintiff's petition was not untimely. The supreme court stated, however, that it need not go as far as the appellate court did by holding that the evidence of defendant's misconduct would have been admissible on the issue of defendant's liability. The supreme court concluded that the outcome of the original trial may have been different had plaintiff added a count asserting that defendant committed wanton and wilful misconduct. The court stated that defendant's "failure to inspect the flashers at all for six weeks, in the face of actual knowledge of its duty to maintain them, could be viewed as such conscious or reckless disregard for consequences as to merit a wilful or wanton characterization [citations], to which [plaintiff's] contributory negligence, if any, would not be a defense." (105 Ill.2d 201, 212-13, 473 N.E.2d 955, 960.) Two justices dissented, arguing that the allegations in the petition do not establish a basis for a new trial since plaintiff's own negligence was found to be the cause of the accident and not the malfunctioning of the signals or the improper maintenance of the signals, whether or not defendant's conduct in this regard is classified as negligence or wilful and wanton misconduct.

On remand plaintiff filed an amended petition to vacate the judgment containing allegations of fraudulent conduct on the part of defendant similar to those contained in the original petition. Plaintiff initiated discovery, and defendant filed a motion for a protective order. Defendant also filed a motion to dismiss the amended petition. Plaintiff took the evidence deposition of Polley on March 15, 1985. By written order dated April 4, 1985, defendant's motion to dismiss was granted in part and denied in part, and defendant's motion for a protective order was granted. Thereafter, defendant filed an answer to that portion of the amended petition not dismissed.

Plaintiff then filed additional counts, and defendant filed a motion to dismiss the additional counts. Both parties filed discovery requests, and defendant filed a motion for a protective order. Defendant's motions were denied. Thereafter, defendant filed answers to the additional counts.

Plaintiff then filed a second amended petition to vacate a judgment. In addition to the grounds alleged in the amended petition, plaintiff's second amended petition alleged that defendant gave incomplete and false answers to interrogatories and responses to requests for production concerning post-occurrence repairs to the crossing signals. Attached to the second amended petition was plaintiff's interrogatory No. 60 and defendant's answer thereto which provided as follows:

"Have you repaired or replaced any signs, signals or other safety devices designed to prevent accidents at the crossing in question since July 20, 1977? If so, state:

a. A description of each repair that was made.

b. A description of each sign, signal or device that was replaced.

c. The date of each repair or replacement.

d. The name and address of the person who was in charge of each ...

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