The opinion of the court was delivered by: Justice Goldenhersh
IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT
Appeal from the Circuit Court of Madison County.
Honorable P. J. O'Neill, Judge, presiding.
Defendant, Union Pacific Railroad Company, appeals from a judgment in favor of plaintiff, Paul L. Fritzsche, special administrator of the estate of Carol Ann Fritzsche, in a wrongful-death action for the death of Paul L. Fritzsche's wife, Carol Fritzsche, killed in an automobile-train collision. The circuit court of Madison County entered judgment on a jury verdict awarding plaintiff $4,300,000 reduced by 25% to $3,225,000 for decedent's contributory negligence.
Defendant has raised numerous issues for consideration. We will not list the many subissues defendant presents, but rather we will discuss these subissues in the text of the opinion. On appeal, defendant makes the following claims: (1) federal law preempts plaintiff's excessive-train-speed claims, (2) no cause of action exists under the Wrongful Death Act (the Act) (740 ILCS 180/0.01 et seq. (West 1994)) for the breach of a warranty deed covenant, (3) the trial court erred in allowing plaintiff's expert to testify concerning previously undisclosed opinions, (4) the trial court erred in excluding defendant's expert's opinions regarding decedent's intoxication, (5) plaintiff's counsel's closing argument comments were inflammatory and resulted in an excessive verdict, (6) defendant has no duty to sound a warning of an approaching train at private crossings, (7) the trial court erred in giving the "missing witness" instruction and plaintiff's non-Illinois Pattern Jury Instruction (IPI) regarding a railroad's duty at an obscured crossing, and (8) the jury's verdict is against the manifest weight of the evidence. We affirm.
On September 1, 1994, at approximately 7 p.m. in clear weather, decedent was driving her Ford Bronco toward her residence, southbound along a private farm road owned by the Fritzsches. A collision occurred at a railroad crossing where defendant's railroad tracks intersect with the farm road.
The train was operated by engineer Donald Cain, who was making his regular run from Villa Grove, Illinois, to St. Louis, Missouri. The train was traveling westward at 60 miles per hour toward the crossing. Cain first saw the Bronco when its front end was coming onto the first rail. At that point the train was 100 to 150 feet from the Bronco. The train struck the Bronco, killing Carol Fritzsche.
A cornfield with fully grown corn was on the left side of the road approaching the crossing. Between the edge of the cornfield and the crossing there were weeds and trees. The farm road intersects the railroad right-of-way at a 55-degree angle. One attempting to cross the tracks would have to turn and look back over their shoulder to see to the left. The grade line of the approach to the crossing is steep, and the surface was covered with loose rock. Decedent frequently used the crossing.
Just prior to the accident, decedent and her brother were at Strotsie's Tavern. According to various witnesses, decedent consumed two to three beers between 6 p.m. and 6:30 p.m. The witnesses drinking with decedent testified that they did not notice any signs of intoxication before decedent left the tavern at 6:30 p.m. It takes between two and four minutes to get from the tavern to the farm crossing. The Madison County Coroner's Office took a blood sample from decedent at 10:38 p.m. on the day of the accident. The blood sample was sent to the St. Louis County Medical Examiner's Office on September 6, 1994. On September 13, 1994, the toxicology lab issued its report stating that decedent's blood-alcohol content was .291, nearly three times the legal limit. Dr. Christopher Long, who signed the toxicology lab report, testified that decedent would have had to have the equivalent of 12 to 15 beers in her blood system at the time of her death to attain a blood-alcohol content of .291. Dr. Long testified that this level of blood-alcohol content would have significantly impaired decedent's perception and reaction time in operating her vehicle.On February 25, 1997, plaintiff filed his amended complaint pursuant to the Act. Count I alleged that defendant was negligent in failing to give notice of the approach of the train by ringing a bell, sounding a whistle, or blowing a horn and in failing to reduce the speed of the train. Count II alleged that defendant was contractually bound to maintain the crossing so as to permit the easy passing of teams (of mules) and to have a grade of less than 8%. Count II alleged that decedent's travel over the crossing was impaired due to defendant's default in maintaining the crossing.
On February 20, 1997, the jury returned a verdict in favor of plaintiff on both counts, awarding plaintiff $4,300,000. The verdict was reduced by 25% to $3,225,000 for decedent's contributory negligence. Defendant's posttrial motions were denied. Defendant appeals.
Due to the many issues defendant raises, additional facts will be presented as needed for the Disposition of this matter.
Defendant initially contends that plaintiff's negligence allegations in count I, to the extent that they allege excessive speed, are preempted by federal law. See CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 123 L. Ed. 2d 387, 113 S. Ct. 1732 (1993), aff'd 933 F.2d 1548 (1991). However, we need not reach this question.
In count I of his amended complaint, plaintiff also alleges that defendant failed to give notice of the approach of the train to the crossing, a place of known or reasonably apprehended danger by reason of the grade, obstructions to the view, and the angle of the intersection. These claims were not specifically preempted by the Supreme Court in Easterwood. In Easterwood the Supreme Court declined to address the question of the preemptive effect of the Federal Railroad Safety Act of 1970 (Safety Act) (45 U.S.C. §§421-447 (1988 & Supp. II)) on claims for the breach of related tort law duties, such as the duty to slow or stop a train to avoid a specific, individual hazard, since such claims were not before the court. 507 U.S. at 675 n.15, 123 L. Ed. 2d 387, 113 S. Ct. at 1743 n.15. Accordingly, the preemptive effects of the Safety Act do not reach the negligence claims raised here.
In further support of our holding, we rely on the Eleventh Circuit's holding in Easterwood. Easterwood v. CSX Transportation, Inc., 933 F.2d 1548 (1991). In Easterwood, two negligence claims were not before the Supreme Court, namely, CSX's failure to trim vegetation not adjacent to the railbed and CSX's failure to remove a hump in the road which impeded navigation over the tracks. These issues were addressed by the Eleventh Circuit. The plaintiff alleged that excessive vegetation on the side of the track obstructed the views of both the engineers and decedent, thereby causing the accident. 933 F.2d at 1554. The Eleventh Circuit found that the claim was partially preempted because federal law (49 C.F.R. §213.37 (1990)) regulates vegetation on and immediately adjacent to the railbed. However, the Eleventh Circuit determined that "the Secretary [of Transportation] has not regulated vegetation which is not immediately adjacent to the railbed." 933 F.2d at 1554. To determine what constitutes the area "immediately adjacent to the roadbed," the Eleventh Circuit relied upon Missouri Pacific R.R. Co. v. R.R. Comm'n, 833 F.2d 570 (5th Cir. 1987). The Missouri Pacific court explained:
"The area `immediately adjacent to the roadbed' abuts the roadbed. Right-of-way property can and often does extend several yards from the roadbed, however. Consequently, not all right-of-way property lies `immediately adjacent to the roadbed,' and the federal regulation does not `cover the subject matter' of vegetation that is on the right-of-way but not immediately next to the roadbed." 833 F.2d at 577.
Adopting the above reasoning, the Eleventh Circuit in Easterwood held, "To the extent that Easterwood is bringing a claim for vegetation near, but not immediately adjacent to, the tracks, this claim is not pre-empted." 933 F.2d at 1554.
The plaintiff in Easterwood also claimed that there was a steep hump in the road elevating the railroad tracks above the roadway which forced traffic to slow down in order to navigate over the hump, thereby contributing to the accident. 933 F.2d at 1556. The court of appeals, in holding that this claim was not preempted, stated that the defendant did not cite, nor could it find, "any federal statute or regulation regulating the angle of the roadway as it approaches the railroad tracks." 933 F.2d at 1556.
Here, the record indicates that the railroad is responsible for the vegetation. Plaintiff's expert, Richard Weinel, a registered land surveyor and registered engineer, testified that according to the abstract documents and deeds, the railroad right-of-way extends 190 feet on each side of the tracks, thereby encompassing the vegetation-covered land near, but not immediately adjacent to, the railbed. Thus, this area of the right-of-way is not subject to federal regulation and its preemptory powers.
We note that defendant, relying upon Pearce v. Illinois Central Gulf R.R. Co., 89 Ill. App. 3d 22, 411 N.E.2d 102 (1980), maintains that it has no duty, either statutory or common law, to trim the trees and brush in its right-of-way. We disagree with defendant's assertion. Pearce is distinguishable from the instant case. In Pearce, the plaintiff was injured in an automobile-train collision on his employer's privately owned and maintained road. We held in Pearce that the plaintiff "had a mere license to cross defendant's right-of-way." Pearce, 89 Ill. App. 3d at 31, 411 N.E.2d at 107. Consequently, the railroad had no duty to guard against the danger of accident. Unlike in Pearce, decedent was using the farm crossing "under [a] right of an adjoining proprietor of land." Atchison, Topeka & Santa Fe R.R. Co., 42 Ill. App. 93, 95 (1891). Further, a contractual relationship exists between decedent and defendant by virtue of the provisions of the 1903 warranty deed. Therefore, Pearce is inapposite to this case.
Regarding the crossing, defendant does not cite to any federal regulations controlling the steepness of approaches to farm crossings, the condition of the surface of the approach, or the angle of the roadway intersecting with the railroad tracks.
Even if plaintiff's excessive-speed claims were preempted by federal law, plaintiff's remaining negligence claims were not subject to preemption and were properly submitted to the jury. Because the jury returned a general verdict, we do not know on what basis it found for plaintiff. Gains v. Townsend, 244 Ill. App. 3d 569, 575, 613 N.E.2d 796, 801 (1993). As there were proper bases for this general verdict, the verdict stands.
[The following material is nonpublishable under Supreme Court Rule 23 (166 Ill. 2d R. 23).]
Defendant contends that there is no wrongful-death cause of action under the Act for the breach of a covenant in a warranty deed to maintain the crossing so that it would have a grade of less than 8%. We disagree.
Section 1 of the Act provides:
"§1. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and ...