APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
526 N.E.2d 557, 172 Ill. App. 3d 297, 122 Ill. Dec. 298 1988.IL.1039
Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.
JUSTICE JOHNSON delivered the opinion of the court. LINN and McMORROW, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON
Plaintiff, Scott Getman, appeals from the trial court's denial of his motion to vacate the summary judgment granted in favor of defendant, Indiana Harbor Belt Railroad Company (hereinafter IHB). Plaintiff brought the underlying action to recover damages for personal injury sustained in a highway grade railroad crossing collision. He named IHB, Belt Railway Company of Chicago, The Milwaukee Road, Inc., and Richard Koehler as defendants. Safetrans Systems Corp., Commonwealth Edison Company, and General Railway Signal Company were later added as defendants. The suit against Commonwealth Edison Company was subsequently dismissed and summary judgment was granted to General Railway Signal Company. However, this appeal is concerned exclusively with the summary judgment granted in favor of IHB.
The trial court granted IHB summary judgment on October 31, 1985, after the completion of discovery. Plaintiff's first motion to vacate the summary judgment was denied on December 15, 1986. Plaintiff filed a second motion to vacate the summary judgment and subsequently, at the hearing, presented the trial court with an amended second motion to vacate to which he attached supporting affidavits. On March 4, 1987, the trial court refused to enter the amended motion, again denied the motion to vacate, and granted plaintiff leave to appeal. Plaintiff appeals from this order.
The record reveals that at about 1 a.m. on April 26, 1981, plaintiff was driving his car southbound on Austin Avenue in Chicago, when he approached the railroad crossing at approximately 59th Street. This crossing involves three railroad tracks. Track 1, the first track approached by southbound traffic, is owned by defendant IHB and at this track are the automatic warning signals for the entire three-track crossing. There is a strip of pavement 45 feet in length between track 1 and tracks 2 and 3, which are owned by Belt Railway Company of Chicago. The warning signals are owned jointly by Belt Railway and IHB and are maintained by IHB.
The Milwaukee Road, Inc., was operating, through its engineer, Richard Koehler, a westbound train on track 2. All parties agree that the warning signals, consisting of flashing red lights and bells, were functioning at the time the Milwaukee train was approaching the crossing. In spite of the warning signal, plaintiff attempted to cross the tracks and was struck by the locomotive on the driver's side of the car. As a result plaintiff sustained serious injuries.
Plaintiff brought an action in negligence against IHB. IHB moved for summary judgment, submitting affidavits in support thereof which stated that the warning signals were properly functioning at the time of the accident. Having no assertion or evidence to the contrary, the trial court granted IHB's motion, finding that there existed no material issue of fact. Plaintiff filed a motion to vacate the summary judgment order, alleging that the warning signals at this crossing had a propensity to malfunction and that, by residing in the vicinity, he was aware that they frequently malfunctioned. The trial court denied the motion to vacate on December 15, 1986.
Thereafter, on January 9, 1987, plaintiff filed a second motion to reconsider and vacate the summary judgment. He realleged that a material issue of fact existed concerning the propensity of the warning signals to malfunction. At the hearing on this motion, plaintiff presented his amended second motion to vacate to which he attached, for the first time, affidavits supporting the assertion that the warning signals were known to malfunction. The trial court did not accept the amended motion and again denied the motion to vacate. Plaintiff appeals, praying for reversal of the trial court's order granting summary judgment in favor of defendant IHB.
The first question presented here is whether the trial court erred by denying plaintiff's second motion to vacate the summary judgment order. Our scope of review is limited, as it was in the trial court, to whether, as a matter of law, there existed a genuine issue of material fact. (Ill. Rev. Stat. 1983, ch. 110, par. 2-1005.) Our task is to consider the pleadings, depositions, admissions, affidavits and any other evidence that was before the court to determine whether there remained a genuine issue of material fact; if not, the moving party is entitled to a judgment as a matter of law. Beals v. Huffman (1986), 146 Ill. App. 3d 30, 36; Mason v. Caterpillar Tractor Co. (1985), 139 Ill. App. 3d 511, 516; Yusuf v. Village of Villa Park (1983), 120 Ill. App. 3d 533, 540; Moran v. Aken (1981), 93 Ill. App. 3d 774, 777.
Plaintiff's complaint alleges that IHB was negligent in maintaining and operating the warning signals at the Austin Avenue grade crossing. In support of its motion for summary judgment, IHB presented the deposition of the three members of the Milwaukee train crew and the affidavit of another eyewitness to the collision, ...