APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ODAS J. NICHOLSON, PRESIDING.
The opinion of the court was delivered by: Mcnamara
JUSTICE McNAMARA delivered the opinion of the court:
Plaintiffs, Carol McKinnon, individually and as special administrator of the estate of Kevin B. Spletter, and Alvin E. Spletter, Calvin M. Spletter, Delwin D. Spletter, Brian McKinnon and Marilyn M. Spletter, filed this action against defendants, Northeast Illinois Regional Commuter Railroad Corporation, d/b/a Metra, and Paul T. Rowland. They sought recovery for the death of the decedent, Kevin B. Spletter, who was struck and killed by a train owned by Northeast and operated by Rowland on a right-of-way and stretch of track owned and maintained by Northeast. Pursuant to section 2-615 of the Illinois Code of Civil Procedure, plaintiffs' complaint was dismissed with prejudice for failure to state a claim upon which relief could be granted. Plaintiffs appeal.
Plaintiffs alleged in their complaint that on August 21, 1988, the decedent "was crossing [a] right-of-way and tracks owned, managed, maintained and controlled by defendant, NORTHEAST, in the area approximately one quarter mile southeast of Route 134 at Portercrossing in Round Lake Park, Illinois[,]" when he was struck and killed by a train "owned, operated and maintained by defendant NORTHEAST" and operated by engineer Rowland.
In paragraphs 4, 5, and 6 of count I of their complaint, plaintiffs alleged as follows:
"4. At all times pertinent hereto, the defendant's right-of-way mentioned was in a densely populated area, easily accessible to the public, and particularly accessible and inviting to persons conducting business or engaging in recreational or general activities who found it necessary to cross the tracks in the area in the general conduct of their life and activities.
5. The defendant, NORTHEAST, for a long time prior to the date in question permitted and allowed residents and other persons to come upon and cross its easily-accessible right-of-way, and it became the custom and habit of persons to walk onto, upon and across the right-of-way and that as a result there were numerous regular well-worn paths on the right-of-way and its embankments on either side of the tracks leading to and from various business establishments and homes. The defendant, NORTHEAST, either knew of the aforesaid custom and the existence of the paths in question or in the exercise of ordinary care and caution should have had notice thereof.
6. At the time and place mentioned there was neither a fence or barrier, nor any other method adopted or devised by defendant NORTHEAST to prevent persons from crossing the tracks or right-of-way and its embankments, although at little expense to said defendant, adequate measures could have been adopted to keep persons from the right-of-way."
In paragraph 10, plaintiffs alleged that:
"10. The defendant, NORTHEAST, was then and there guilty of one or more of the following negligent acts or omissions:
(a) Failed to blow the whistle or ring the bell thereon, or otherwise to sound any warning, of the approach of said locomotive and train;
(b) Failed to keep a proper, or any, lookout for pedestrians who might be crossing its tracks on said paths;
(c) Failed to stop said locomotive and train when it discovered, or in the exercise of ordinary care would have discovered, that ...