Appeal from the Circuit Court of McHenry County. No. 92--LA--116 Honorable Haskell M. Pitluck, Judge, Presiding.
The opinion of the court was delivered by: Justice Galasso
This case arises out of the March 21, l990, collision of an automobile driven by plaintiff Jean Lindquist (Jean) and a passenger train owned and operated by the Union Pacific Railroad, successor in interest to the Chicago and Northwestern Transportation Company (defendant), at the Oak Street crossing (crossing) near Crystal Lake. On March 9, l998, plaintiffs, Jean and Charles Lindquist, filed a four-count amended complaint against defendant. Count I sounded in negligence, alleging that defendant breached its duty to safely operate its trains and to properly maintain the automatic crossing warning devices at the subject crossing. Count II alleged Charles's loss of consortium due to defendant's negligence. Count III sounded in willful and wanton conduct, alleging that defendant was aware of faulty equipment at the crossing but failed to take reasonable steps to remedy the situation. Count IV alleged Charles's loss of consortium due to defendant's willful and wanton conduct. Subsequently, defendant filed a motion for summary judgment, arguing that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law.
The motion for summary judgment also contended that application of the doctrines of res judicata and collateral estoppel precluded plaintiffs from relitigating this case. The motion was fully briefed and argued in the trial court. On November 2, l998, the trial court granted the motion for summary judgment on the basis that no genuine issues of material fact existed and that defendant was entitled to summary judgment as a matter of law. The trial court's order did not address defendant's res judicata and collateral estoppel arguments. This timely appeal followed.
On appeal plaintiffs raise the following arguments: (1) whether the evidence contains material questions of fact regarding defendant's breach of its duties under Interstate Commerce Commission (ICC) regulations; (2) whether the frequent unnecessary activations of the automatic signals at a railroad crossing create a hazardous condition that leads to injury; (3) whether evidence of Jean's and defendant's breach of their respective duties creates a question of fact as to the relative degree of fault to be determined by the jury; and (4) whether defendant's position should be rejected as a matter of law and as being contrary to the public policy of promoting safety at railroad crossings.
The record contains the following pertinent facts. The crossing was located approximately one mile east of the Crystal Lake train station. Oak Street ran in a north-south direction. Two train tracks ran through the crossing in a northwest to southeast direction, with the result that motorists proceeding north on Oak Street would have to look somewhat "behind" themselves to see the tracks to the east of the crossing. Also, to the east of the crossing was an area that included a number of sidetracks, where passenger trains were parked overnight and, during the day, where passenger trains performed "crossover maneuvers", i.e., were repositioned for return trips to Chicago. The crossing was equipped with electronic traffic control devices, which automatically activated the crossing gates, flashing lights, and bell upon the approach of a train. The record also indicates that a metal signal circuitry box (signal bungalow) was situated in the southeast quadrant of the crossing, approximately 18 feet to the south of the south edge of the mainline tie and 37 feet from the east edge of Oak Street. The exact dimensions of the circuitry box do not appear in the instant record.
At approximately 8:55 a.m. on March 21, l990, Jean was driving her automobile in a northerly direction on Oak Street. The weather conditions were dry and clear. At the time of Jean's approach to the crossing, a freight train, owned and operated by defendant, was stopped approximately 500 feet west of the crossing. The freight train was waiting for a passenger train to complete a "crossover maneuver" on the tracks to the east of the crossing. Both the freight train and the subject passenger train were operated by defendant.
Jean, who suffered serious brain injuries in the collision, was unable to testify to the events leading up to the accident. In an affidavit that was attached to the motion for summary judgment, Frank Pellegrino made the following statements. On the date and time in question, he was the driver of a passenger train that was traveling west from Chicago through Crystal Lake en route to Harvard, Illinois. In his deposition, Pellegrino stated that his job title was that of a fireman. However, he had extensive experience in driving trains. Pellegrino further testified that the subject train was being operated with the locomotive first. At the time of the accident, the locomotive's dual headlights were on bright and a yellow revolving warning light on the locomotive's roof was engaged. In his affidavit, Pellegrino further stated that, as the subject train approached the crossing from the east, he observed the crossing's signals were activated to warn of the train's approach and that all of the vehicles first stopped at the crossing. A short distance from the crossing, Pellegrino saw a northbound vehicle drive around the lowered gates and move into the train's path. Pellegrino stated that he immediately applied the emergency brakes and sounded the whistle to no avail. According to Pellegrino, the speed limit for the subject section of track was 70 miles per hour and the train's speed just before the collision was approximately 60 miles per hour. In applying the emergency brakes and sounding the whistle, Pellegrino suffered an injury to his left shoulder, which was the subject of a lawsuit filed against Jean and defendant. Defendant settled with Pellegrino in the amount of $8,538.41. The case proceeded to trial in late 1995 and resulted in a $15,000 jury verdict for Pellegrino against Jean, which was set off by the amount of the settlement with defendant.
Two motorists, Elizabeth Dietrich and Mary Marin, were stopped behind the lowered gate on the north side of the crossing at the time of the collision. In her deposition, Elizabeth Dietrich stated that she had observed the faulty operation of the subject crossing gates on a number of occasions and had even gone around the lowered gates several times, making certain to look both ways before doing so. On the morning in question, as Dietrich was traveling south on Oak Street towards the crossing, she observed the crossing gates lower into the down position. Dietrich explained that she was stopped behind another car on the north side of the crossing. She first observed Jean's car as it pulled up to the crossing's south gate. Dietrich estimated that the car was in a stopped position between 5 and 10 seconds before the driver began to maneuver it around the lowered gate. According to Dietrich, the car stopped briefly before actually driving onto the tracks. She did not observe that the driver was having any difficulty controlling her automobile.
Mary Marin gave two statements regarding her recollection of the collision. In the first statement taken six days after the collision, Marin said she was traveling south on Oak Street and saw a stationary freight train approximately 500 feet to the west of the crossing. As she approached the crossing, the gates came down, and she stopped in front of the gate. Marin stated that she saw the subject automobile coming in the opposite direction. She "assumed" that the car stopped momentarily at the gate. Then it "quickly started up again and *** went around the gate and came up onto the tracks." Marin heard a train whistle blow and then saw the train hit the car. In her second statement, Marin said that approximately 30 to 45 seconds elapsed from the time the gates came down to the time of the collision.
In his deposition, Floyd Bryant, the engineer of the freight train that was stopped over 500 feet to the west of the crossing, testified that it appeared to him that the crossing's gates were working properly on the morning of the collision. Bryant also stated that, on approximately 25 occasions, he had been the engineer of a train that passed through the crossing. He testified that he had never seen the crossing's gates operate improperly. Bryant further stated that if, on the morning in question, the gates had stayed down after being activated by the approach of the freight train, he would have sent a trainman to the crossing "to raise the gates manually or flag the crossing to protect the crossing."
Bernard Morris testified that he was the chief railroad engineer for the Illinois Commerce Commission. He stated that unnecessary activations relating to the unnecessary operation of crossing signals caused by train "crossover maneuvers" are covered by sections 1535.350 and 1535.365 of the ICC regulations. Morris testified regarding the danger to the public caused by frequent unnecessary activation of crossing lights as follows:
"Q. What is the danger to the public with excess operation of warning devices? A. *** [I]f it's frequent enough-typically, when you have someone who runs a signal or gate, a common lament that you hear is 'Well, the gates are always down,' and either there's no train there or the train was stopped near the crossing. So *** if you have it [occurring] regularly, people get used to a situation where the train is stopped near the crossing, the gates are down. They will sometimes then not even bother to look. They just go around them. Q. If people in a given area who frequently use a crossing where the gates activate and no train comes through, over time they will rely less on the gate; is that the danger? *** That they will view the gates as unreliable; is that the danger? A. *** I think the danger is that they disregard the gates without looking. They will go around them without looking. Q. Because they are used to the gates coming down and no train coming through? A. Well, or there being a train nearby, but stopped, or going away from the crossing."
Further, the record contains an article from the Signalman's Journal, April 1990, entitled "Driver Behavior at Railroad Crossings: Is it Just Recklessness?", from which the following excerpt is taken.
"The problems facing drivers at grade crossings have also been analyzed by a number of human factors experts, including Dr. Herschel Leibowitz, Professor of Psychology at Penn State University and an internationally recognized authority on human vision and perception. Dr. Leibowitz, testifying at the *** most recent Federal Railroad Administration hearing on grade crossing regulations, stated he was initially challenged by grade crossing accidents 'because theoretically there shouldn't be any.' In analyzing the causes of the thousands of accidents recorded each year, however, Dr. Leibowitz said the credibility of warning systems at crossings emerges as a critical factor in understanding the driver behavior problems associated with those accidents. He said instances of improperly activated signals (false warnings) are similar to the classic tale of 'the boy who cried wolf.' Dr. Leibowitz said such false warnings lead drivers to base their decision-making at railroad crossings more on their own perceptions instead of the information from warning devices. He added, 'It turns out, very unfortunately, that there are a number of factors in the grade crossing environment which bias the decision in the wrong direction.' He said studies show that drivers have a natural tendency to underestimate the speed and distance of trains approaching a crossing and 'think they have more time than is the case.' Dr. Leibowitz said false warnings also have a significant and damaging effect on efforts to educate drivers and establish ...