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Marjorie Mcdonald, Executrix of the Estate of v. Northeast Illinois Regional Commuter Railroad

August 24, 2011

MARJORIE MCDONALD, EXECUTRIX OF THE ESTATE OF
THOMAS MCDONALD, DECEASED, AND MARJORIE MCDONALD, INDIVIDUALLY,
PLAINTIFFS-APPELLEES,
v.
NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION, D/B/A METRA/METROPOLITAN RAIL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County Honorable Arnette R. Hubbard, Judge Presiding. No. 07 L 2551

The opinion of the court was delivered by: Justice Murphy

JUSTICE MURPHY delivered the judgment of the court, with opinion.

Presiding Justice Quinn and Justice Neville concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Northeast Illinois Regional Commuter Railroad Corp., d/b/a Metra, appeals from orders of the circuit court of Cook County entering judgment on the jury's verdict in favor of plaintiff, Marjorie McDonald, individually and as the executrix of the estate of the decedent, Thomas McDonald, and denying its posttrial motion for judgment n.o.v. or a new trial. On appeal, defendant contends that it did not have a duty to warn the decedent of the oncoming train because he knew it was approaching and the danger presented by the train was open and obvious, that the decedent's negligence was the sole proximate cause of the accident, and that the circuit court erred by allowing plaintiff to present evidence and argue to the jury that it was negligent for having failed to install and activate pedestrian signals prior to the accident. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 On August 21, 2007, plaintiff filed an amended complaint, in which she asserted that defendant operated a train station at 3000 Willow Road in Glenview, Illinois (North Glenview station), and that she and the decedent went to that station on April 25, 2002, to board a southbound train to Chicago. Prior to boarding the train, the decedent crossed the tracks at the pedestrian crosswalk and was struck by one of defendant's trains that was running express through the North Glenview station toward Chicago. Defendant had installed pedestrian signals at the North Glenview station, but had not yet activated them at the time of the accident.

¶ 4 Plaintiff alleged that defendant owed the decedent the highest duty of care because it was a common carrier with respect to its operation of the North Glenview station and the passengers intending to board the trains therein and that it breached its duty of care by operating a train through the station without having activated the pedestrian signals it had previously installed; allowing the public to access the station when it knew it did not have adequate protections in place for the safety of pedestrians; failing to adequately warn the decedent that the pedestrian signals had not been activated; operating a train without keeping a proper and sufficient lookout; failing to adequately warn the decedent of the approach of the southbound express train; operating its train at an excessive rate of speed given the fact that the pedestrian signals had not been activated; failing to adequately slow the train and avoid hitting the decedent; and/or failing to activate the pedestrian signals that had previously been installed. Plaintiff further alleged that as a result of one or more of defendant's breaches of its duty of care, the decedent sustained personal and pecuniary injuries, and she sustained a loss of consortium, society, and support.

¶ 5 Plaintiff also asserted that the decedent had since died of causes unrelated to the accident, that she voluntarily dismissed the cause of action on March 10, 2006, and that the complaint at issue was a refiling of that earlier action. Plaintiff requested the court enter judgment against defendant for a sum in excess of the jurisdictional limits of the law division of the circuit court of Cook County.

¶ 6 The record shows that defendant owned and operated the Milwaukee North Line, which consisted of two parallel tracks that ran north and south through the North Glenview station on its way to and from Chicago and Fox Lake, Illinois. Southbound trains ran on the west tracks and northbound trains ran on those to the east. At the time of the accident, a parking lot had been constructed to the east of the North Glenview station. Thus, a passenger who had parked in the parking lot and intended to board a southbound train would have to cross over both tracks at the crosswalk from the east platform to the west platform prior to the arrival of the train.

¶ 7 Plaintiff testified at trial that she and the decedent had not been to the North Glenview station prior to the accident, but had been to the other Glenview station about 30 times over the previous 3 years, and that the decedent had always obeyed the lights and bells that activated when a train was approaching a crossing. On the morning of the accident, they parked their car in the parking lot to the east of the train tracks at the North Glenview station, and the decedent realized he had forgotten his change in the car as they started walking toward the station.

Plaintiff continued across the tracks to the station, and the decedent returned to the car. Plaintiff waited for the decedent on the platform on the west side of the tracks and saw him walking toward the platform, then looked to the north and saw a train in the distance. Plaintiff attempted to catch the decedent's attention and said "why don't you wait," but she did not know if he heard her. Plaintiff heard the train's horn blow when the decedent was halfway across the crosswalk and saw him try to hurry across in response. The decedent barely made it across the crosswalk before the train arrived, but was blown back into the train by the force of its accompanying wind, and then landed on the platform. The decedent's arm was bleeding, and an ambulance arrived at the station a few minutes later and transported him and plaintiff to Lutheran General Hospital.

¶ 8 On cross-examination, plaintiff stated that at the time of the accident, the decedent did not wear a hearing aid, had good hearing for someone who was 79 years old, and only wore glasses for reading. Plaintiff also stated that when she tried to get the decedent's attention and said "why don't you wait," he was just beginning to cross over from the platform to the east of the tracks to the crosswalk. While plaintiff could not remember whether the decedent looked both ways before crossing the tracks, she stated that he probably would have been able to see the approaching train had he looked north before traversing the crosswalk. Plaintiff further stated that the train's horn sounded several seconds before the accident and that the decedent would have been out of the train's way had he stopped and taken a step back after hearing the horn.

¶ 9 William Porter, the director of public works for the Village of Glenview at the time of the accident, testified that the North Glenview station opened on January 7, 2001, in an area of Glenview previously occupied by a naval base. Defendant had decided to open the station even though the pedestrian signals, which had been installed at the other Glenview station in the 1980s and were to flash lights and ring bells as a train was approaching, had not been completed. Porter believed the station should have been equipped with pedestrian signals to protect the commuters' safety and had public works crews form Glenview install signs on the barricades at the pedestrian crossing which directed patrons to "stop, look, and listen." Porter did not regard those signs as a substitute for pedestrian signals because they were not a standard installation at a train crossing. At the time of the accident, the pedestrian signals were set to be in service by May 10, 2002.

¶ 10 On cross-examination, Porter stated that he believed the North Glenview station was safe for use when it opened even though the pedestrian signals had not been installed. He also stated that defendant put up signs at the crosswalk that said "CAUTION!," "HIGH SPEED TRAINS," and "LOOK BOTH WAYS BEFORE CROSSING" shortly after January 11, 2001, and that at the time of the accident, the signal heads for the pedestrian signals were in place and covered with black plastic bags.

¶ 11 Glenford Peters, defendant's project manager in charge of designing the North Glenview station, testified that the final set of drawings for the station provided for a location where pedestrian signals were to be installed. On cross-examination, Peters stated that he did not know why the signals had not been installed by the time the station was opened and that he helped in putting together a sign that was to be mounted on the inner track fence, which runs the length of the station between the two platforms, to warn commuters of approaching trains. Frank Baranski, an employee in defendant's signal department, testified that the signal design for the North Glenview station was completed in November 2001 and that pedestrian signals were designed to provide commuters with a 20-second warning of approaching trains, which was the standard minimum warning time provided by the Federal Railroad Administration (FRA).

¶ 12 Eugene Holland, a consulting engineer and licensed structural engineer in the State of Illinois, testified that he was retained by plaintiff's counsel to formulate opinions regarding the security and safety of the North Glenview station and reviewed numerous documents including deposition testimony, photographs, and the manual on uniform traffic control devices prior to testifying. Holland explained that pedestrian warning signals provide a commuter with a warning that a train's arrival is imminent and opined within a reasonable degree of engineering certainty that defendant should not have opened the North Glenview station until after such signals had been completed because commuters were not provided with a prewarning that a train was approaching. On cross-examination, Holland stated that the decedent would have been able to see the approaching train had he looked both ways before attempting to cross the tracks.

¶ 13 Plaintiff presented evidence through the testimony of Dr. Miledones Eliades and the video evidence depositions of Dr. Andrea Kramer and Dr. Leon Benson showing that the decedent received treatment for his multiple injuries resulting from the accident at Lutheran General Hospital, where he remained from the date of the accident until June 3, 2002, and at Evanston Hospital, where he remained from June 3 to July 31, 2002.

¶ 14 After plaintiff rested her case-in-chief, defendant called Daniel Orseno, who worked for defendant as the superintendent of the Milwaukee District and had investigated the accident at the request of defense counsel to determine whether Brian Voss, the engineer of the train involved in the accident, had properly operated the train. Orseno testified that during the investigation, he collected and analyzed data from the train's data recorder, which is analogous to an airplane's black box; read the depositions of plaintiff, Voss, David Chidlow, and Arlene Landsman; and reviewed documents and measurements prepared by defendant and the Glenview police force.

¶ 15 Orseno explained that an engineer was required to activate the train's bell at least a quarter-mile before reaching a station at which the train was not going to stop, keep a lookout to make sure the track was clear, sound the train's horn as a warning if someone was in harm's way, and put on the emergency brakes if a person did not get off the tracks following the warning horn. Once the emergency brakes had been applied, there was nothing else an engineer could do to slow down or stop the train.

¶ 16 Based on his investigation, Orseno believed that on the morning of the accident, Voss was operating a southbound train and that the decedent attempted to cross the tracks from east to west at the crosswalk at the North Glenview station. Orseno determined that Voss activated the train's bell about 40 seconds and more than a half-mile before reaching the station, sounded the horn 7 to 8 seconds before the train reached the crosswalk, and applied the emergency brakes 6 to 7 seconds before reaching the crosswalk. Orseno opined that Voss fulfilled his responsibilities as an engineer to keep a lookout, activate the train's bell, sound its horn, and apply the emergency brakes on the morning of the accident.

ΒΆ 17 On cross-examination, Orseno stated that pedestrian signals were to be activated 20 seconds before an approaching train reached the station, that Voss would not have been doing his job properly if he had waited until the decedent was halfway across the crosswalk to sound the train's horn, and that based on additional observations made by a Glenview police officer, it was possible that Voss did not sound the train's horn until six seconds before it reached the crosswalk. On redirect, Orseno testified that he believed Voss ...


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