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07/20/87 Justin J. Tedrowe, Ex'r of v. Burlington Northern

July 20, 1987

JUSTIN J. TEDROWE, EX'R OF THE ESTATE OF SUSANNE L. ROCKS, DECEASED, PLAINTIFF-APPELLANT

v.

BURLINGTON NORTHERN, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

511 N.E.2d 798, 158 Ill. App. 3d 438, 110 Ill. Dec. 621 1987.IL.1018

Appeal from the Circuit Court of Cook County; the Hon. Jerome Lerner, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE QUINLAN delivered the opinion of the court. BUCKLEY and MANNING, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

The plaintiff, Justin J. Tedrowe, executor of the estate of Susanne L. Rocks, brought this wrongful death action against defendant Burlington Northern on behalf of the estate of Susanne Rocks, the driver of an automobile who was fatally injured by a commuter train in a railroad-crossing accident. Following 16 days of trial and the testimony of 41 witnesses, the jury rendered a verdict and two special interrogatories for the defendant and against the plaintiff. Plaintiff's post-trial motion for judgment notwithstanding the verdict or, in the alternative, a new trial was denied and judgment was entered on the verdict. The plaintiff contends on appeal that the trial court erred in refusing to set aside the jury verdict and denying plaintiff's motion for a new trial.

On the morning of January 13, 1981, Susanne Rocks (decedent) approached the Burlington Northern railroad crossing in Westmont, Illinois, as she drove to work. Witnesses testified that she stopped at the stop sign on eastbound Burlington Avenue and then turned right to proceed southbound on Cass Avenue where it intersects with the train tracks. The Westmont commuter passenger station is located west of Cass Avenue and includes a closed shelter, windbreaks, benches, and a bicycle rack. There are three separate tracks at the Westmont station. The southernmost track is for local eastbound commuter trains; the middle track is for express trains to and from the city during rush hours; and the northernmost track is for local westbound commuter trains. Decedent's automobile was struck by an eastbound express train traveling on the middle track at 47 miles per hour.

Plaintiff relies heavily on the testimony of George Filip, who was driving a van directly behind decedent. Filip testified that Mrs. Rocks was stopped at the crossing gate for a minute or two before the gate rose two or three feet above the roof of her car and that she then proceeded onto the tracks. Mr. Filip stated that he was about to follow her when the gate fell sharply back to a horizontal position in front of his van. However, Filip's testimony was inconsistent with that of other witnesses, and he was not sure whether a local commuter train was already in the station when the accident occurred and whether the front car of the train that hit decedent's automobile was a locomotive. Plaintiff, however, in support of Mr. Filip's testimony, pointed to the fact that many witnesses did not see the approaching express train and claimed this also supported his additional contention that there were visual obstructions to the view of the approaching train. Of course, an equally plausible explanation, as observed by the trial court, was that the witnesses were inattentive to the scene prior to the accident and merely did not notice the train before the accident.

The testimony as to what happened when decedent reached the crossing also varied. One witness, Robert Foley, testified that as he walked across Cass Avenue on the north side of the tracks, he observed ringing bells, flashing signals, and lowered gates in the crossing area. As he entered the crosswalk on Cass Avenue, he passed directly in front of the lowered crossing gates. Foley testified that he observed the decedent's automobile, which he expected to stop at the crosswalk, but which did not stop and instead drove right past him and through the lowered crossing gate. Mr. Foley heard a cracking sound and then observed the gate scraping decedent's windshield as it passed over her car. Foley's testimony was corroborated by the testimony of mechanical engineer Cal Adelman.

Mr. Adelman, who also testified at trial, stated that he was employed by Burlington Northern to run an experiment on the lowered gates to determine if they could be bumped up and over an automobile. In 8 out of 10 tests, when an automobile of the same model and make as decedent's bumped the lowered gate, the gate bounced up and over the car and then returned to a horizontal position. Other eyewitnesses testified that they saw the gate rise but they were unsure whether the decedent's automobile hit the gate before it began to rise.

Burlington Northern presented inspection records to show that the signals were inspected weekly, maintained on a seasonal basis, and periodically tested for insulation resistance. Ordinarily, when a train enters the track near a crossing, it interrupts the electromagnetic relays which, in turn, activate the signal circuits. Once activated, the gates are lowered and then held horizontal only by the force of gravity. The crossing signals stop flashing when the gates on both sides of the tracks are vertical. One of plaintiff's theories was that negligent maintenance had caused a temporary short circuit in the resistors which permitted the gate in front of decedent's automobile to rise. Also, plaintiff pointed out that the Illinois Commerce Commission General Order 138 imposed a duty on all railroads to maintain, operate and renew crossing signals. However, it should also be noted that in answering a special interrogatory, the jury specifically found that defendant Burlington Northern was not guilty of any violation of ICC rules which proximately caused the death of Mrs. Rock.

Additionally, plaintiff argued in the trial court, and also argues here, that visual obstructions on the Burlington Northern property were a proximate cause of decedent's death because Mrs. Rocks' view of the approaching train was blocked at the time of the accident; thus, she could not see the approaching train when she entered the crossing area. While there was some testimony that decedent looked to the west toward the approaching train just prior to impact, no witness testified that the decedent looked to the west before proceeding onto the tracks. Again, the plaintiff notes that the ICC General Order 138 imposed a duty on all railroads to keep right-of-ways reasonably clear of trees and unnecessary permanent obstructions which would materially obscure the view of approaching trains to travelers on the highway. However, as stated, there was no testimony that plaintiff even looked in the direction of the train immediately prior to the time she proceeded onto the tracks. Additionally, the jury, in again answering a special interrogatory, expressly found defendant Burlington Northern not guilty of a violation of ICC rules which the plaintiff had alleged was a proximate cause of decedent's injury.

To reverse a denial of a motion for a new trial on appeal requires a showing that the trial court abused its discretion. (Levenson v. Lake-To-Lake Dairy Cooperative Co. (1979), 76 Ill. App. 3d 526, 394 N.E.2d 1359.) Plaintiff claims that the trial court here erred in the standard it applied to the motion for a new trial; that it was also error to refuse plaintiff's tendered Illinois Pattern Jury Instruction, Civil, No. 60.01 (2d ed. 1971) (IPI Civil 2d) and non-IPI jury instruction No. 17; and that the defendant's 8-by-10 photograph of a train should not have been admitted into evidence.

Plaintiff's first argument is that the trial court erroneously applied the "manifest weight of the evidence" standard instead of the "preponderance of the evidence" standard in ruling on plaintiff's motion for a new trial. The First District Appellate Court, unfortunately, has inconsistently applied a "preponderance of the evidence" standard to motions for new trials generally based on the theory that the trial court observes the evidence first hand, as does the jury, and should, therefore, more appropriately use the same standard for review of the jury's decision as the jury has been instructed to use. For example, in Spankroy v. Alesky (1977), 45 Ill. App. 3d 432, 359 N.E.2d 1078, the trial Judge set aside the jury verdict in the defendant's favor and granted a new trial based ...


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