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03/29/95 DEBBIE DANNER AND GARY CUNDIFF v. NORFOLK

March 29, 1995

DEBBIE DANNER AND GARY CUNDIFF, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF JAMIE CUNDIFF, DECEASED, PLAINTIFFS-APPELLEES,
v.
NORFOLK & WESTERN RAILWAY COMPANY, KENNETH E. DAVIS, THE VILLAGE OF GRANDVIEW AND THE CITY OF SPRINGFIELD, DEFENDANTS-APPELLANTS, AND PEGGY J. STUBER, ADMINISTRATOR OF THE ESTATE OF PATRICK M. ROY, DECEASED, AND PEGGY J. STUBER, INDIVIDUALLY, PLAINTIFF-APPELLEE, V. NORFOLK & WESTERN RAILWAY COMPANY, A VIRGINIA CORPORATION, AND THE VILLAGE OF GRANDVIEW, ILLINOIS, A MUNICIPAL CORPORATION, DEFENDANTS-APPELLANTS.



Appeal from Circuit Court of Sangamon County. No. 92L103, 92L235. Honorable Sue E. Myerscough, Judge Presiding.

Released Publication March 29, 1995. As Corrected May 10, 1995.

Honorable Robert W. Cook, J., Honorable Carl A. Lund, J., Honorable Frederick S. Green, J., Concurring

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

This appeal arises out of wrongful death actions brought by Debbie Danner and Gary Cundiff, individually and as administrators of the estate of Jamie Cundiff, and Peggy Stuber, individually and as administrator of the estate of Patrick Roy. On May 22, 1991, plaintiffs' decedents were passengers in a car driven by Brandon Woodcox. Woodcox was driving north on Albany Street in Grandview, Illinois, when he attempted to cross a railroad crossing. The car was struck by a westbound train, operated by defendant Norfolk and Western Railway Company (Norfolk and Western). Roy and Cundiff were killed by the collision, while Woodcox survived.

The Albany Street crossing was equipped with automatic flashing warning lights and signals, which were approved and installed pursuant to an Illinois Commerce Commission (ICC) order in 1971. Plaintiffs have not alleged that the warning lights were not operational, but that they were woefully inadequate. Plaintiff Stuber's complaint, which is substantially identical to the Danner and Cundiff complaint, alleges that Norfolk and Western was negligent, in that Norfolk and Western:

"K. Failed to petition the to authorize additional safety devices, including but not limited to, automatic crossing arms at the intersection, in light of conditions which have changed since the last ruled upon the adequacy of safety devices at the crossing in June 1971, including the following:

1. numerous accidents at the crossing, including a triple fatality on October 13, 1988;

2. a substantial increase in traffic flow at the crossing;

3. a substantial increase in the number of buildings and other obstructions which obscure a motorist's view of oncoming trains;

4. an increase in the speed of Defendant's trains as they pass through the crossing;

5. the inability of the [Illinois Commerce Commission ('Commission')] to regulate 10,000 miles of railroad tracks with a staff of 15 members ***."

In its answer, Norfolk and Western raised as a defense that it had no duty, pursuant to section 18c-7401(3) of the Illinois Commercial Transportation Law (Law) (625 ILCS 5/18c-7401(3) (West 1992)), to petition the ICC to upgrade the crossing protection. Section 18c-7401(3) of the Law provides in pertinent part:

"The shall have power, upon its own motion, or upon complaint, and after having made proper investigation, to require the installation of adequate and appropriate luminous reflective warning signs, luminous flashing signals, crossing gates illuminated at night or other protective devices in order to promote and safeguard the health and safety of the public. Luminous flashing signal or crossing gate devices installed at grade crossings, which have been approved by the , shall be deemed adequate and appropriate. The shall have authority to determine the number, type and location of such signs, signals, gates or other protective ...


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