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12/07/94 CORA LEE RHODES v. ILLINOIS CENTRAL GULF

December 7, 1994

CORA LEE RHODES, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF CARL RHODES, DECEASED, PLAINTIFF-APPELLEE,
v.
ILLINOIS CENTRAL GULF RAILROAD, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Jerome Lerner, Judge Presiding.

Rehearing Denied January 13, 1995.

Justice Cerda delivered the opinion of the court: Rizzi, J., And Greiman, J., Concur.

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

Following a jury trial, defendant, Illinois Central Gulf Railroad (ICG), was found liable for the death of Carl Rhodes. The jury awarded plaintiff, Cora Lee Rhodes, special administrator of the estate of Carl Rhodes, $l.568 million in damages. On appeal, defendant asserts that the trial court erred in determining as a matter of law that it owed Rhodes a duty of ordinary care. We affirm the circuit court's judgment for the reasons that follow.

The issue in this case is whether the defendant railroad owed plaintiff a duty to exercise ordinary care for his safety after the railroad's agents observed plaintiff lying on the floor of the railroad's waiting room over a long period of time, unconscious and with his head covered with blood.

Raymond Deany, an ICG conductor, testified that he was operating an ICG passenger train on, November 29, 1986, at 5:02 a.m. when it stopped to pick up passengers at the unstaffed 75th Street and Exchange Avenue station in Chicago. When a passenger told him that a man was lying down in the waiting room, Deany got off the train to investigate. He and the train's collector, Casimir Ziolkowski, looked into the waiting room through the doorway.

Deany stated that he saw the man, who was later identified as Rhodes, lying face down on the floor. He noticed a small amount of blood around Rhodes's head, but did not notice anything else around him. Deany did not check Rhodes to see if he were alive, but did radio his load supervisor, Lee Hastman, to report that a man was lying face down with blood and was in need of assistance.

At 5:48 a.m., Deany's train again stopped at the 75th and Exchange station, but Deany did not check to see if Rhodes was still there because he expected that the ICG police had taken care of him.

When Deany passed the 75th and Exchange station at 6:40 a.m., he saw Rhodes and again reported it to Hastman, who said that he had taken care of it. At 9 a.m. when he passed through the station, Deany learned that Rhodes was still in the waiting room. Deany did not report the incident again because he was headed for the Randolph Street station, where the incident was again reported.

Lee Hastman, the overnight load supervisor on November 29, 1986, testified that he received a call at 5:02 a.m. of a man lying in the waiting room. Hastman then contacted the ICG police dispatcher, who was Jerome Meehan.

Jerome Meehan testified that he called special agent Mark Krull when he received the call from Hastman shortly after 5:02 a.m. Krull told Meehan to call the Chicago police because he was busy with other duties. Meehan then contacted the Chicago police.

According to Meehan, dispatcher Nancy Wheeler received a call at 7:56 a.m. from James Carpenter, the load supervisor on duty, that a man was in the waiting room at the 75th and Exchange station. The conductor had reported that the man and floor were covered with blood. Upon receiving the report, Wheeler contacted the ICG special agent on duty, who was Richard Bilek. When Bilek told the dispatcher to call the Chicago police, Wheeler contacted the Chicago police.

Meehan stated that a third call came into the dispatcher's office around 9:45 a.m., stating that the man was covered with blood. Wheeler contacted Bilek, who said he was on his way and asked Wheeler to call the Chicago police, which she did.

Casimir Ziolkowski, the collector on Deany's train, testified thatthe train stopped at the 75th and Exchange Street station at 5 a.m. Ziolkowski went with Deany to investigate a report that someone was lying in the waiting room. He could not see Rhodes's head nor shoulders, which were under a bench. Although Ziolkowski did not check Rhodes, he did not think he was injured. At 5:40 a.m., Ziolkowski again saw Rhodes when the train passed through the 75th and Exchange station. At that time, Ziolkowski told the train engineer that Rhodes was still there.

Richard Bilek, an ICG police officer, testified that he received a call at 9:44 a.m. of an injured man at the 75th Street station. When Bilek arrived at the 75th and Exchange station at 10:11 a.m., he saw Rhodes lying face down on a bench in the waiting room. He did not see any blood, but did see beer cans two to three feet from Rhodes. Bilek woke up Rhodes, who appeared to be highly intoxicated, and asked if he had fallen or been beaten up. Bilek noticed cuts on Rhodes's swollen face and smelled ...


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