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03/17/89 Richard R. Coen, Jr., v. Central Gulf Railroad

March 17, 1989

RICHARD R. COEN, JR., SPECIAL ADM'R OF KYLE R. COEN, DECEASED, ET AL., PLAINTIFFS

v.

ILLINOIS CENTRAL GULF RAILROAD COMPANY ET AL., DEFENDANTS AND COUNTERPLAINTIFFS AND THIRD-PARTY, PLAINTIFFS-APPELLANTS (MONICA FORBES, F/K/A



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Monica Coen, Counterdefendant; Central

Illinois Public Service Company et

al., Third-Party, Defendants-Appellees)

No. 4-88-0585

536 N.E.2d 215, 180 Ill. App. 3d 614, 129 Ill. Dec. 531 1989.IL.343

Appeal from the Circuit Court of Champaign County; the Hon. George S. Miller, Judge, presiding.

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. McCULLOUGH, P.J., and LUND, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

On May 30, 1985, plaintiffs Richard R. Coen, Jr., as special administrator of the estate of Kyle R. Coen, deceased, and Monica Coen brought suit against defendants Illinois Central Gulf Railroad Company and R.D. Fletcher in the circuit court of Champaign County. Subsequently, defendants filed an amended third-party complaint against third-party defendants Central Illinois Public Service Company and Coles-Moultrie Electric Cooperative (Coop). On June 3, 1988, the court allowed CIPS' motion to dismiss defendants' third-party complaint against CIPS for failure to state a cause of action. The order provided that the dismissal was in bar of action as to the defendants' claim for contribution. On July 28, 1988, the court made a similar ruling, dismissing defendants' third-party complaint against Coop for failure to state a cause of action and declaring the dismissal to be in bar of action as to defendants' claim for contribution. On August 8, 1988, defendants filed a notice of appeal from the foregoing orders.

On August 23, 1988, Coop filed a document with the court requesting the court to clarify and amend its order of July 28, 1988, noting that the order contained no finding pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) which would make that order appealable. The order was final only as to the contribution claim of defendants against Coop but not final as to all other claims and parties in the case. On September 13, 1988, the circuit court entered a written order dismissing in bar of action count III of defendants' third-party complaint, which was directed solely against Coop. The order also made a finding pursuant to Supreme Court Rule 304(a). Defendants then filed a supplemental notice of appeal purporting to cover all of the circuit court orders dismissing defendants' claims against both Coop and CIPS. As the Rule 304(a) finding of the September 13, 1988, order made the dismissal of defendants' claim against Coop appealable, that appeal is before us. We affirm that order.

On October 12, 1988, CIPS moved in this court to dismiss defendants' purported appeal of the order dismissing their claims for contribution against CIPS. This court recognized that the order of June 3, 1988, lacked appealability absent a Rule 304(a) finding but, mistakenly, concluded that the September 13, 1988, finding pursuant to Rule 304(a) covered the June 3, 1988, order. Accordingly, this court ruled that the supplemental notice of appeal perfected the appeal against CIPS and denied the motion to dismiss. Defendants then sought a Rule 304(a) finding from the circuit court as to the June 3, 1988, order, but the circuit court concluded it had no jurisdiction because of our denial of the motion to dismiss the appeal and denied the request. Subsequently, we recognized our error and dismissed the appeal as to the order concerning CIPS. Apparently, no Rule 304(a) finding could be obtained and a new notice of appeal filed before scheduled oral arguments. Thus, although the case has been fully briefed on the merits by all parties, we are limited here to the appeal of the order of dismissal as to Coop.

Plaintiffs' complaint alleged Kyle R. Coen was killed, and Monica Coen injured, when an ICG train, running on its right-of-way and operated by Fletcher, collided at a highway crossing with an automobile driven by Monica Coen and in which Kyle R. Coen was riding as a passenger. Both defendants were charged with negligence. One of the grounds of negligence charged was that ICG had obscured the vision of Monica Coen at the crossing by failure to keep the right-of-way cleaned of bushes, shrubbery, trees, and weeds in violation of section 73 of the Illinois Public Utilities Act (Ill. Rev. Stat. 1983, ch. 111 2/3, par. 77).

As pertinent here, count III of defendants' amended third-party complaint directed against Coop alleges that (1) CIPS had erected "for [Coop]" an electric transmission pole near ICG's right-of-way with a guy wire and anchor which extended upon ICG's right-of-way; (2) plaintiffs had alleged that a bush on that right-of-way had obstructed plaintiff Monica Coen's view of the ICG train as it approached the crossing at the time of the collision and was a proximate cause of the collision; (3) "the presence of the guy wire and the anchor on the railroad's right-of-way was a cause of said bush " (emphasis added); and (4) "having caused to be placed said guy wire anchor" on the right-of-way, Coop owed a duty to ICG and Fletcher "to exercise ordinary care to maintain the guy wire and anchor, which ...


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