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Poltrock v. Chicago & No. West. Trans. Co.

OPINION FILED DECEMBER 30, 1986.

MICHAEL POLTROCK, SPECIAL ADM'R OF THE ESTATE OF MARY POLTROCK, DECEASED, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,

v.

CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Brian L. Crowe, Judge, presiding.

JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 3, 1987.

Plaintiff and defendant cross-appeal from a jury verdict and judgment finding defendant guilty of negligence when one of its commuter trains struck and killed plaintiff's decedent while she was crossing defendant's tracks at its Ravenswood station. They raise as issues whether: (1) the circuit court erred in evidentiary rulings by (a) admitting a "police" accident report under the business-records exception; (b) admitting expert reconstruction testimony; and (c) admitting a photograph of the accident scene showing post-accident improvements; (2) plaintiff's decedent's status was that of a business invitee, licensee, or trespasser; (3) plaintiff's closing argument was unduly prejudicial; (4) the circuit court erred in rejecting defendant's "present value" jury instructions; (5) plaintiff's damages should be reduced by the amount of life insurance benefits already paid by decedent's insurance which was paid for by defendant; and, on cross-appeal, (6) defense counsel's conduct improperly prejudiced plaintiff's case.

On December 15, 1981, decedent, Mary Poltrock, a 26-year old accountant employed by defendant, Chicago and North Western Transportation Company (CNW) at its downtown office, worked somewhat later than usual, took the CNW train that left the downtown terminal at 5:29 p.m. and arrived at the Ravenswood Station on the north side of Chicago at 5:42 p.m., where decedent alighted.

The Ravenswood Station is elevated approximately 15 feet above ground level. The CNW line has three tracks at that point, and the station has one separate passenger platform to the east of the tracks and another to the west. Two stairways descended from each platform to street level, where there was also a pedestrian walkway beneath the tracks allowing access from platform to platform.

The three CNW tracks were designated 1 through 3, respectively, from west to east. The center track, track 2, was generally reserved for express trains which did not stop at Ravenswood. Track 2 was used for Ravenswood trains when either track 1 or track 3 was out of service. A plank platform extended from the east platform to the east rail of track 2 for use when that happened, and another similarly extended from the west platform to the west rail of track 2. Whether the planking extended between the east and west rails of track 2 was contested at trial. Defendant characterized the planking as a platform; plaintiff called it a crosswalk. A barbed-wire fence existed between tracks 2 and 3 to discourage people from crossing the tracks in order to get from the east to the west platform and vice versa. On the day of decedent's accident, the wire fence had been cut and pulled apart at the platform or crosswalk location, a condition which had previously existed.

Decedent detrained the northbound train onto the west platform of the station, and walked past one of the exit stairways and the south end of the train. The train she had just left began to leave the station, and she began to cross the planking eastward toward the opposite platform. The departing train then signaled a southbound train approaching from the north that it had just unloaded passengers at the station.

The approaching train was returning empty commuter passenger cars to CNW's rail yard; whether it was on track 2 or 3 is in dispute. As decedent attempted to cross in front of the southbound train, she was struck and killed. Personnel on that train saw decedent; its horn was blown; and it came to an emergency stop. Decedent is said to have initially froze in place and then unsuccessfully tried to continue to cross in front of the train at the time of the accident.

On January 19, 1982, decedent's husband filed a complaint as special administrator on behalf of her estate. Defendant answered on May 5, 1982. According to plaintiff's third amended complaint, filed January 24, 1986, CNW failed to exercise reasonable care in its conduct toward decedent, a business invitee who exercised reasonable care. The third amended complaint was filed on the final day of trial.

The jury returned a verdict assessing total damages as $2,150,000 but found decedent to have been 60% responsible through her own negligence and accordingly awarded her estate $860,000.

Defendant appealed and plaintiff thereafter cross-appealed.

I

Defendant initially identifies several evidentiary rulings claimed to have been erroneous. First, a police report prepared by CNW's police was assertedly improperly admitted. Illinois specifically vests railroad police with powers identical to those of the city police in section 2 of "An Act for the protection of passengers and property on railroads and boats and for the appointment and powers of railroad policemen" (Act) (Ill. Rev. Stat. 1985, ch. 114, par. 98). Plaintiff claims the report was a business record prepared by and for a private corporation in the regular course of its business. Although the legislature has concluded in this Act that crimes against railroad passengers and property are such matters of public concern as to delegate certain police powers to designated railroad employees, it does not follow that when recording an accidental occurrence such employees are acting beyond the private interests of the railroad, a private corporation. The use of such accident reports, rather, is governed by other considerations, as set forth in the following paragraph.

• 1 In considering the admissibility of a railroad accident report in Palmer v. Hoffman (1943), 318 U.S. 109, 111-16, 87 L.Ed. 645, 648-51, 63 S.Ct. 477, 479-81, the United States Supreme Court construed the present Federal business-record statute (28 U.S.C. § 695 (1940), now 28 U.S.C. § 1732 (1982)), which is very similar to Illinois Supreme Court Rule 236 (94 Ill.2d R. 236), and concluded that admission of such a report under the business-entry exception was improper because accident reports are prepared by the railroad for use in possible litigation, not in the ordinary course of business, and motivation in its preparation could affect its trustworthiness. Where the party seeking its admission is not the railroad but the adverse party, however, as in the present case, and it is offered against the party for whom it was prepared, the railroad, the rule does not apply and the report is admissible. (Leon v. Penn Central Co. (7th Cir. 1970), 428 F.2d 528, 530; Korte v. New York, New Haven & Hartford Co. (2d Cir. 1951), 191 F.2d 86, cert. denied (1951), 342 U.S. 868, 96 L.Ed. 642, 72 S.Ct. 108; Pekelis v. Transcontinental & ...


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