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11/15/94 DANNY W. ZOOK v. NORFOLK & WESTERN RAILWAY

November 15, 1994

DANNY W. ZOOK, PLAINTIFF-APPELLEE,
v.
NORFOLK & WESTERN RAILWAY COMPANY, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Vermilion County. No. 87L240. Honorable John P. O'Rourke, Judge Presiding.

Honorable Carl A. Lund, J., Honorable Frederick S. Green, J., Honorable Robert J. Steigmann, J.

The opinion of the court was delivered by: Lund

JUSTICE LUND delivered the opinion of the court:

Plaintiff Danny Zook was critically injured when a freight train owned by defendant Norfolk & Western Railroad (Railroad) struck the grain truck plaintiff was driving over a railroad crossing on October 21, 1986. Following a trial in Vermilion County, the jury returned a verdict itemizing damages totaling $1.9 million against the Railroad. The circuit court subsequently entered judgment on the verdict. The Railroad now appeals from that judgment.

Zook's original complaint alleged the following violations of duty: (1) driving and operating the train at a high and dangerous rate of speed; (2) failing to keep a lookout; (3) permitting weeds and brush to grow on the Railroad's right-of-way and obscuring the vision of motorists crossing the tracks; (4) constructing the approaches to the tracks at a grade of more than 5 degrees; (5) failing to stop or slow the train to avoid a collision; (6) operating the train at a speed too high for the conditions of the track and crossing; (7) operating the train at a speed so great as to render any warning signals or devices ineffective; and (8) failing to properly construct, maintain, and operate the equipment, track, and other property so as to cause or create an undue risk to the public. During trial, the trial court allowed amendments to the complaint which alleged the Railroad also violated the following duties: (1) negligently maintaining the crossing and railroad tracks in an extrahazardous condition; (2) failing to adequately protect the crossing; and (3) operating the engine long end forward when it knew or should have known that such operation eliminated the engineer's view to the left and diminished the warning that the horn provided to motorists.

The accident happened in Vermilion County, immediately southwest of Tilton. The crossing is on East Ross Lane (Ross Lane). There are two "main line" tracks at the crossing; one carries rail traffic east, and the other carries rail traffic west. The tracks run in a northeast-southwest direction, and Ross Lane travels in an east-west direction. Ross Lane proceeds south from the Catlin-Tilton Road and then makes a 90-degree curve to the east toward the tracks. The angle of the road to the tracks is 41 degrees. The tracks are elevated above the road and surrounding fields. Ross Lane is gravel and traverses a steep grade on both sides of the crossing. Brush and weeds were growing along the rights-of-way of the road and railroad tracks. There is a rail yard to the northeast of the crossing.

The day was sunny, dry, bright, and warm. Zook was driving a grain truck. The train's lead engine was being operated long end forward; it could be operated in either direction. The cab of the engine is closer to one end than the other; hence, the designation long end forward or short end forward. At 12:50 p.m., Zook was traveling east on Ross Lane toward the crossing. He was familiar with the crossing. The train was traveling northeast. Thus, from the train's perspective, the truck was moving from left to right; from the truck's perspective, the train was moving from right to left.

The fireman was sitting on the left-hand side, facing forward. As the train approached the crossing, he saw a "gasoline truck" traveling east on the road traveling 20 to 25 miles per hour. The truck slowed to 5 to 10 miles per hour as it approached the grade and continued across. It did not stop. The fireman did not realize the truck would enter the tracks in front of the train until it was too late for it to stop. At that point he stood up, yelled at the engineer that they were going to hit a "gasoline truck," and took cover behind a bulkhead. He testified that the engineer put the train into an emergency stop when they hit the truck.

The train's engineer was sitting on the right-hand side of the locomotive, facing forward. No one on the train was looking for traffic except the fireman and engineer. The long end of the engine blocked the engineer's view to his left. He stated he was blowing the whistle as the train approached the crossing. The engineer never saw the truck before the collision, and he did not know it was there until the impact. He heard the fireman say something to him which he did not understand, just as they hit the truck. He applied the brakes on impact.

Two Railroad employees at the rail yard were watching the approaching train. One employee remembered hearing the train's whistle, and the other did not. They did not see Zook turn his head to look for a train, but they did not watch him continuously.

The train's speed at and immediately before the crossing was a disputed issue. The track speed limit is 60 miles per hour. Every train has a speed tape that is similar to the "black box" found in airplanes. It records the speed (as the speedometer displays it), brake applications, throttle applications, and amps generated by the engine. It also shows distances at one-mile and at one-quarter mile intervals. The tape looks similar to an eight-track tape, and there is a special machine that interprets the information and prints it in graph form. The train crew does not have access to the speed tape. The Railroad removes the tape at random times to check compliance with railroad regulations and removes it after every accident. Testimony regarding the contents of the speed tape was contradictory, with testimony that the train was traveling 58 to 64 miles per hour at impact. We have looked at the speed tape, and it is apparent that the jury could have interpreted the speed tape as showing the train traveling at 64 miles per hour at and immediately before the crossing. The Railroad's expert stated that a four-mile-per-hour difference over a span of 20 to 30 seconds would create enough difference in distance to allow the truck to clear the tracks. A difference of one to two miles per hour would not be enough.

The horn's audibility was also at issue. Farmers in the area had never heard the train's whistle while working in their fields. Zook's expert noted that it would have been difficult for Zook to hear the whistle. Operation of the train long end forward caused the sound to pass over the train's exhaust, which was essentially a vertical wind. The exhaust caused the sound to rise, making it more difficult to hear on the road, which is lower than the elevated tracks.

Zook has many injuries. His brain was injured, resulting in a poor short-term memory, a memory loss for the period from October 1986 to January 1987, a personality change, and a weakened left side. He holds his arm close to his body, limps, and has slurred speech. Zook no longer sleeps on his left side, because lying on his left side causes him pain. He had to learn to read, write, and walk again. His spleen was removed, making him prone to infection and blood clots. Zook has severe scarring on his chest and back. His medical bills totaled $144,035.98. He can no longer shoe, break, or train horses, his professions before the accident.

The Railroad raises 11 issues on appeal.

First, the Railroad argues the Federal Railroad Safety Act of 1970 (Safety Act) (45 U.S.C. § 421 et seq. (1988)) preempts Zook's claim and evidence of excessive train speed. Pursuant to the Safety Act, Federal regulations have been promulgated which set maximum speeds for railroad tracks. The track speed at the accident site was 60 miles per hour. In CSX Transportation, Inc. v. Easterwood (1993), 507 U.S. , , 123 L. Ed. 2d 387, 404, 113 S. Ct. 1732, 1743-44, the Court held that the Federal speed regulations promulgated under the authority of the Safety Act preempted the plaintiff's negligence action "only insofar as it asserts that petitioner's train was traveling at an excessive speed." Since there is ample evidence, although contradicted, for the jury to find the train was exceeding 60 miles per hour, Zook's claim of excessive speed was not preempted.

Second, the Railroad also contends the trial court erred in allowing Zook's expert to give an opinion that the crossing was extrahazardous, because his testimony was based on data proscribed from use at trial by section 409 of title 23 of the United States Code (23 U.S.C. § 409 (Supp. V 1993)). Section 409 prevents the discovery or use at trial of all information required by the statute to be gathered by States and railroads to improve, inter alia, railroad crossing safety.

We find the Railroad waived this issue by not objecting to the expert's opinion during his testimony at trial. The Railroad made a motion in limine before the trial to bar any use of or opinion based upon the proscribed data, inter alia, and it reasserted the motion before Zook's expert testified. The trial court denied the motion. When a motion in limine is denied, the unsuccessful movant must specifically object to the evidence when it is offered by the other party at trial. The rule is well settled that the denial of a motion in limine does not preserve an objection to the disputed evidence later introduced at trial. The moving party must contemporaneously object when the evidence is offered or it waives the objection) ( Cunningham v. Millers General Insurance Co. (1992), 227 Ill. App. 3d 201, 206, 591 N.E.2d 80, 83, 169 Ill. Dec. 200.) In its brief, the Railroad cites portions of the expert's testimony it finds objectionable, but we find no objection there. The Railroad does not cite to the record where it made an objection to the opinion of Zook's expert based on proscribed data. We have examined the record and find only one objection that can be argued to apply to the expert's opinion testimony:

"[Zook's counsel]: What did you determine with respect to the past so far as accidents at this crossing was [sic ] concerned?

[Railroad's counsel]: Can my objection be shown for the record?

THE COURT: And the basis?

[Railroad's counsel]: We've argued about the admissibility of any prior incidents, Your Honor.

THE COURT: All right.

[Railroad's counsel]: And I ...


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