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Rub v. Consolidated Rail Corporation

May 28, 2002


Appeal from the Circuit Court of Cook County 93 L 12091 Honorable Thomas E. Flanagan, Judge Presiding.

The opinion of the court was delivered by: Justice McBRIDE


On November 25, 1992, Howard G. Rub, Jr. (Rub), was killed when a train owned and operated by defendant-appellee Consolidated Rail Corporation (Conrail) collided with his vehicle. The accident occurred at the intersection of Morris Road and the Conrail tracks in Dwight, Illinois. Leann Rub (plaintiff), widow of Rub, filed a wrongful death action against Conrail in her individual capacity and on behalf of the estate of Howard G. Rub, Jr. Among other allegations, Leann Rub alleged in her second amended complaint that the Morris Road crossing was improperly maintained by Conrail, that Conrail failed to provide adequate warning of approaching trains at the crossing, and that the operators of the train at issue were negligent by failing to slow the train to avoid a collision with Rub's vehicle. Conrail responded by contending that Rub was contributorily negligent in causing the collision that resulted in his death. A jury returned a verdict in favor of Conrail, and the trial court entered a judgment on the verdict against Leann Rub and the estate of Howard G. Rub, Jr., on November 27, 1997. Plaintiff filed a post trial motion, which was denied by the trial court on May 28, 1999. Plaintiff now appeals.

Several questions are raised on appeal. First, whether the trial court erred during voir dire when it allowed counsel for defendant to question prospective jurors on facts not yet in evidence. The second, third, fourth, and issues are discussed in the non published portion of this opinion. Second, whether the trial court erred by giving certain jury instructions. Third, whether the trial court erred by excluding evidence as to the extrahazardous nature of the Morris Road crossing. Fourth, whether the trial court gave the jury improper limiting instructions that were prejudicial to plaintiff. Fifth, whether the cumulative effect of the errors denied plaintiff the right to a fair trial. We state the following background facts.

On the evening of the accident, Rub was driving southbound on Morris Road at approximately 55 miles per hour. The Conrail train tracks run east to west and cross Morris Road at a perpendicular angle. The evening was overcast and the blacktop pavement was wet. Approximately 390 feet north of the intersection, a circular advance warning sign with a yellow background was posted displaying a black X and a black RR, indicating to approaching motorists that a railroad crossing was ahead. At the crossing itself, a cross buck sign was posted. A cross buck sign is a cross on a wooden post that indicates the presence of a railroad crossing. There were no flashing lights at the intersection, no gates, and no lights designed to illuminate the grade crossing. The grade was elevated at the intersection.

As Rub approached the intersection, a westbound Conrail train consisting of two engines and 44 freight cars was advancing on the same crossing at 40 miles per hour. James Grimes, the train's engineer, testified the trains lights were on. He also stated that he saw Rub's vehicle approaching the intersection at the same distance and the same rate of speed. He said that he became concerned because it did not appear that Rub was going to stop. Grimes stated that Rub did not seem to respond to a whistle sequence he had blown in order to warn him of the approaching train. He further testified that he began a series of short blasts on the whistle up to the impact with Rub's vehicle. Also prior to impact, Grimes said that he threw the emergency brake on the train before Rub reached the cross bucks at the intersection. The record revealed that Grimes and the train's conductor, Charles Rice, were reluctant to put the train into emergency because they feared derailment of the train, their safety, and the safety of the public in the surrounding area. Rice testified that it was unsafe to activate the emergency brake and risk putting the train into emergency when Rub had plenty of time to stop.

The record reveals that Rub continued to proceed to the intersection. His vehicle was hit broadside by the locomotive and the collision resulted in his death. The evidence showed no indication of braking marks or skid marks anywhere in the intersection.

In plaintiff's case in chief, Daryl Holt, then president of the Village of Dwight, testified that he became involved in negotiating the cleanup of overgrown brush at the intersection which made the crossing difficult to see. He also stated that headlights of trains were difficult to see because they blended into the background lighting in the area. Holt said that Conrail had not remedied these problems prior to Rub's accident.

Two Dwight residents who lived in close proximity to the intersection testified that they never heard the train's whistle blow.

In addition, Tony Montgomery, a former employee of Rub, testified that he was driving in another car closely behind Rub's auto at the time of the accident. He said that he neither saw nor heard the train approaching until it struck Rub's vehicle.

John Edward Baerwald, one of plaintiff's expert witnesses, testified that the surrounding sources of light from homes and other public lights camouflaged the headlights of the on-coming train. He also characterized the crossing as extrahazardous as defined by railroad engineers. Baerwald further stated that, at minimum, the crossing should have had two alternately flashing red lights "or [,] more desirably [,] flashing lights plus *** short arm gates *** that drop down and close off the approach lanes."

Henry Lowell Lazara, a specialist in forensic lighting, also testified for plaintiff. He stated that he inspected the intersection at Morris Road and determined it to be an "unlighted area."

Michael Massie, plaintiff's railroading expert, testified that Grimes and Rice were negligent in their failure to apply the train's brakes. He specifically stated that Grimes could have slowed the train down to 35 miles per hour in the distance to the crossing, which would have allowed Rub's vehicle to clear the track.

To the contrary, Conrail's expert witness, Thomas Burnes, an engineer, stated that he had inspected the intersection on four separate occasions. He said that the headlamps of locomotives he observed were clear and distinctly different from any of the background lights. He further testified that, in his opinion, there were no material obstructions to visibility that would have prevented a motorist from seeing and identifying an approaching train. Thus, he concluded that a motorist would have had an opportunity to observe the train and to take evasive action if necessary. Burnes said that there are certain factors that make an intersection extrahazardous, specifically, where the hazard is so intense or unusual that it exceeds the capability of a motorist, driving in due care, to appreciate the risk involved and to exercise the appropriate level of caution. He further stated that he did not characterize this intersection as extrahazardous because crossing it was not beyond the capabilities of motorists that were operating their vehicles in due care.

William Egan, a Conrail employee in charge of the engineer training school at the company, said that Grimes and Rice maintained a proper lookout prior to the accident, properly implemented the warning devices on the locomotive, and appropriately put the train into emergency. He further stated that "you never put a train into emergency unless you know you're going to hit something."

After all the evidence had been presented, the jury returned a verdict in favor of Conrail. Plaintiff does not allege that the jury's verdict was against the manifest weight of the evidence, but she claims that numerous errors made by the judge below warrant a new trial.

The first issue raised on appeal is whether the trial court conducted a proper voir dire. We have stated:

"The purpose of voir dire is to assure the selection of an impartial jury, free from bias or prejudice. [Citation.] The trial judge has the primary responsibility for initiating and conducting voir dire, and the scope and extent of voir dire are within his sound discretion. [Citation.] Upon review, an abuse of discretion will be found only if the trial judge's conduct prevented the selection of an impartial jury." Dixson v. University of Chicago Hospitals & Clinics, 190 Ill. App. 3d 369, 376, 546 N.E.2d 774 (1989).

Also, it may be error for the court to fail to curtail voir dire that becomes an attempt to indoctrinate or preeducate jurors or to obtain a pledge as to how they would decide under a given set of facts or determine which party they would favor in litigation. Gasiorowski v. Homer, 47 Ill. App. 3d 989, 992, 365 N.E.2d 43 (1977).

Plaintiff argues that the trial judge improperly permitted Conrail to discuss facts not yet in evidence with prospective jurors. Specifically, plaintiff complains of defense counsel's reference to the cross bucks at the Morris Road intersection and subsequent attempts to solicit the venire persons' views on the protection cross bucks afford to motorists. Plaintiff also contends that the voir dire conducted by Conrail provided jurors with an incomplete and misleading characterization of the law as it relates to cross bucks. As a result of these errors, plaintiff argues the trial judge should have taken corrective action in the form of calling for a new venire or providing a cautionary instruction. According to plaintiff, the trial court's failure to do so resulted in the denial of a fair trial.

We first address plaintiff's complaint that defense counsel improperly introduced a fact, specifically the presence of cross bucks at the Morris Road crossing, that had not yet been introduced as evidence.

At the outset of voir dire, the court addressed the prospective jurors with the following overview of the case:

"So I am in a position to tell you in general what the case is about, but I do not want you to think that I am telling you evidence because I don't tell you evidence. What the lawyers say in fact is not evidence. Evidence comes from up here under oath.

Basically, a review of the type of case is as follows: Howard Rub was operating a car on Morris Road in Dwight, Illinois. There was a collision between his car and a Conrail train at a railroad crossing. As a result, Howard Rub was killed. The plaintiff alleges this incident was a direct and a proximate result of negligence on the part of the railroad, and the defendant railroad denies that any conduct on its part constituted negligence."

A review of the record reveals that the subject of whether the crossing was marked was first raised by prospective juror, Francis Prather, who said:

"[MR. PRATHER]: I don't know whether I can ask a question.

[THE COURT]: Well, you can ask me anything you want.

Q: Was it a marked or an unmarked crossing?

A: That I don't know yet, but we are going to find out that evidence as it develops under oath from up here, but I am wondering not how you will decide it but whether in a general sense this kind of case gives you a hard time?

[MR. PRATHER]: I don't know any reason why." Before defense counsel asked any questions of Prather, plaintiff's attorney elicited the following:

"Q: *** [S]ince this is a train collision case, could you tell me just a little about the incident where your mother-in-law was killed or injured?

A: This was in Montana, and she was hit at an unmarked crossing and had hip replacement and walked with a limp for a number of years until she passed away."

Plaintiff's attorney then continued:

"Q: When you say unmarked, are you talking about -

A: *** It was probably the crosses but not the - not lights. Q: *** Do you feel that there is anything about that incident that would prevent you from being fair and impartial in this case?

A: I don't believe so, no."

In response to a question from plaintiff's counsel, the next prospective juror, Rosevetta Stan, said:

"A: *** [T]he big guy is always guilty, and he should pay, like the railroad if that is what it is.

Q: *** [Y]ou have a feeling that the railroad because they are big they should pay? ***

A: Yeah.

Q: You are not just saying that because you want to get out of here and get back to your cosmetology business?

A: No, this is the truth."

Stan also said that crossing the train tracks every day made her afraid. After examining several other prospective jurors, plaintiff's counsel tendered the panel to defense counsel. After examining several prospective jurors, defense counsel then asked Prather:

"Q: You discussed somewhat this morning the circumstances of the railroad accident that involved your mother-in-law some years ago in Montana?

A: Yes.

Q: And early on before any of the lawyers asked you any questions, when the judge was asking you questions, you in essence asked him a question about was this a protected or unprotected crossing. Do you remember that?

A: Right.

Q: *** When you told us about the incident involving your mother-in-law, you indicated that had a cross bucks only protection sign at the crossing, correct?

A: Right.

Q: Now, is that something that you believe or feel is not a protected crossing or is not sufficient or is not adequate?

Q: Okay. My question would be then if - would you consider it to be an unsafe condition at a railroad crossing if the protection that existed there was simply a cross bucks instead of lights, flashers, things of that nature?

A: Not if there were -- there was sufficient vision both ways.

Q: *** Is there anything with respect to the circumstances of your prior experience or your general knowledge that would prevent you in this case from weighing the evidence, listening to both sides and then rendering a fair and impartial verdict based upon the facts and the evidence in the laws as instructed to you by the court?

A: I would have no problem with that, no, not really."

Plaintiff's counsel raised no objections to these questions posed by the defense attorney.

Counsel for plaintiff then asked Prather the following question:

"Q: Now in this particular case if you hear evidence that the crossing was protected by a cross bucks only, will you give us your assurance that you'll listen to all of the evidence and you'll make a fair determination based on the law that Judge Flan[a]gan gives you the crossing was adequate in this case"?

A: Yes."

Later during voir dire, defense counsel asked Beth Larson, a prospective juror, the following question:

"Q: We talked a little bit earlier concerning cross bucks protection railroad with Mr. Prather, and I asked him questions about whether he had a problem with that based upon the history of the accident with his mother-in-law. Do you have any feelings one way or the other that just a crossbuck at a railroad crossing is not good enough and there has to be something else no matter what?

A: I don't think so. I mean I certainly like the ones that have the lights better for my sake, but, you know, I don't think -- I guess the answer is no.

Q: What I need to know is whether you have any preconceived notion or preconceived bias that there has to be more protection at the crossing than just a cross buck, and that in and of itself means that there's a problem and something else should be there and if it isn't, then there's guilt whether it's negligence or fault.

A: I don't think it's a question of negligence, no."

Plaintiff's counsel made no objections to these two questions posed by defense counsel. The panel of prospective jurors was then accepted by both sides, excused for the day, and instructed to return to the jury room the next day.

During the selection of the next four jurors, plaintiff's attorney asked Mr. Shannon:

"Q: You heard some questions about the cross bucks or cross buck crossings, correct?

A: Yes.

Q: You understand that in this case you may have to decide whether or not in this particular crossing cross bucks were adequate to protect a crossing or whether the crossing needed additional protection. Will you listen to all of the evidence fairly on that before deciding?

A: Sure."

Plaintiff's counsel excused Mr. Stevich, a potential juror, and then examined the next prospective juror, Kathleen Kushnapor. During earlier questions posed by the court, Kushnapor revealed that her brother had been in a car accident and had suffered a crushed pelvis. As result of the accident, she stated that her brother always walked with a limp. Plaintiff's attorney asked Kushnapor the following questions:

"Q: There were some questions asked about railroad crossings and crossings that don't have flashers, they just have cross bucks. Do you remember those questions?

A: Yes.

Q: There's going to be an issue in this case about whether or not the railroad crossing involved in this case had adequate protection. Will you listen to all of the evidence on that issue and then make up your mind after hearing all the evidence?

A: Yes.

Q: You'll give both sides a fair trial?

A: Yes."

Plaintiff's counsel indicated that he would accept the panel of Ms. Kushnapor, Ms. Lingo, Mr. Shannon, and Mrs. Spirodovich.

Defense counsel then asked Ms. Lingo a series of questions about a car accident in which she was injured. During plaintiff's questioning, Lingo revealed that, as a result of the accident, she had refused to drive since the age of 14. Defense counsel asked whether she had any "preconceived ideas" because of the accident and whether there was problems with any of the ...

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