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02/20/87 Winifred Bradfield, Adm'r, v. Central Gulf Railroad

February 20, 1987

WINIFRED BRADFIELD, ADM'R, APPELLEE

v.

ILLINOIS CENTRAL GULF RAILROAD COMPANY, APPELLANT



SUPREME COURT OF ILLINOIS

505 N.E.2d 331, 115 Ill. 2d 471, 106 Ill. Dec. 25 1987.IL.202

Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County, the Hon. William E. Johnson, Judge, presiding.

APPELLATE Judges:

JUSTICE GOLDENHERSH delivered the opinion of the court. JUSTICE RYAN, Dissenting. JUSTICE SIMON, also Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GOLDENHERSH

Defendant, Illinois Central Gulf Railroad Company, appealed from the judgment of the circuit court of Madison County entered upon a jury verdict in the amount of $175,000 in favor of plaintiff, Winifred Bradfield, administrator of the estate of Richard Bradfield, deceased. The appellate court affirmed (137 Ill. App. 3d 19), and we allowed defendant's petition for leave to appeal (103 Ill. 2d R. 315(a)). The facts are adequately stated in the opinion of the appellate court and will be reviewed here only to the extent necessary to discuss the issues.

The testimony shows that on January 23, 1978, plaintiff's decedent was traveling east on a road perpendicular to defendant's railway, approximately one-quarter mile south of the town of Lostant, when his vehicle was struck at the crossing by defendant's train. Plaintiff's decedent was killed in the crash. The crossing was protected only by a railroad "crossbuck." The train involved in the collision consisted of a snow plow, two engines and a caboose. Although the weather at the time of the occurrence was clear and the sun was shining, the train had been used to clear snow that had drifted onto the tracks. A member of the crew testified that they had plowed a drift approximately two-thirds of a mile south of the crossing where the collision occurred. He testified that while plowing snow in this manner it was necessary to frequently sound the whistle in order to prevent its clogging with snow. Two crew members testified that from the time the northbound train passed a whistle mark one-quarter of a mile south of the crossing, until the collision occurred at the crossing, they rang the bell and sounded the whistle.

The testimony of plaintiff, decedent's widow, and that of the two crew members was contradictory. The crew testified they followed the required crossing-whistle pattern of two long blasts, a short blast, and another long blast. Plaintiff testified that she heard the train coming down the tracks and a "frantic" blow of the whistle immediately before the crash. The circuit court, over defendant's objection, admitted the testimony of plaintiff and Jeffrey Bradfield, son of plaintiff and the decedent, that on other occasions, prior to the occurrence in question, crews operating defendant's trains had failed to blow a whistle or horn when approaching the crossing. These witnesses testified that the crews did not sound a whistle until after they had passed the crossing and were entering the town of Lostant.

This appeal presents the sole question whether the circuit court erred in admitting the testimony concerning defendant's "habit" of not blowing the whistle until the train had passed over the crossing and was entering the town of Lostant. The appellate court, citing Gardner v. Geraghty (1981), 98 Ill. App. 3d 10, 15, acknowledged that the current rule regarding "habit" testimony was that it was permitted in wrongful death cases where there were no eyewitnesses to the occurrence. (See also Plank v. Holman (1970), 46 Ill. 2d 465.) The appellate court, however, noting that the emerging view as reflected by the Federal Rules of Evidence (Fed. R. Evid. 406), was that habit evidence was always admissible to prove the conduct of a person or business organization, rejected the eyewitness requirement and followed Rule 406. Rule 406 of the Federal Rules of Evidence provides:

"Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice." Fed. R. Evid. 406.

Defendant contends that the appellate court erred in not following this court's decision in Plank v. Holman (1970), 46 Ill. 2d 465. Plank, it argues, reaffirmed this jurisdiction's long-standing rule that habit testimony is not admissible when eyewitness testimony is available. They argue that, even if this court were to adopt Federal Rule of Evidence 406, the testimony was insufficient to prove defendant's habit of failing to properly sound the whistle. Citing Reyes v. Missouri Pacific R.R. Co. (5th Cir. 1979), 589 F. 2d 791, and Wilson v. Volkswagen of America, Inc. (4th Cir. 1977), 561 F. 2d 494, defendant argues that evidence of habit is not admissible unless a foundation is laid showing an adequate sampling and uniformity of response. It contends that because the sole issue before the jury concerning defendant's negligence was whether the whistle was properly sounded at the time of the collision, plaintiff's "vague" testimony that she heard a "frantic whistle and a crash" was insufficient to prove that the whistle was not sounded for one-quarter mile before the crossing. Under these circumstances, defendant argues that the appellate court erred in holding that if such testimony was error, the error was harmless.

Upon examination of the record we conclude that defendant did not preserve for review, and we should not decide on the grounds presently urged by defendant, the question whether the evidence was erroneously admitted. The transcript shows that in plaintiff's direct examination, the following ensued:

"Q. In the past when railroad trains have gone over that crossing, have they blown their whistle for that crossing?"

MR. BROWN: Show my objection. I don't think that has any ...


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