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Gary Eskew and Judy Henderson, As Co-Administrators v. the Burlington Northern and Santa Fe Railway Company

September 30, 2011



The opinion of the court was delivered by: Presiding Justice Hoffman

PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

Justices Karnezis and Rochford concurred in the judgment and opinion.


¶ 1 The plaintiffs, Gary Eskew and Judy Henderson, as co-administrators of the estate of Scott Eskew (Eskew), deceased, brought this action against the defendants, the Burlington Northern and Santa Fe Railway Company (BNSF) and the Northeast Illinois Regional Commuter Railroad Corporation d/b/a Metra (Metra), alleging that their negligence resulted in the death of Eskew. The jury returned a verdict for the plaintiffs in the amount of $5 million, assigning 85% of the liability to BNSF, 10% of the liability to Metra, and 5% contributory negligence to Eskew. Based on this verdict, the circuit court entered judgment for $4,750,000 in favor of the plaintiffs, and the defendants have appealed. For the reasons that follow, we affirm the judgment of the circuit court.

¶ 2 The evidence presented at trial established that Eskew, who was legally blind, habitually rode the 1:14 p.m. train from Berwyn to Chicago in order to begin his 3 p.m. shift as a security guard at the Art Institute of Chicago. Eskew was struck and killed by the eastbound commuter train as he attempted to cross from the platform on the north side of the tracks to the southern platform, where the 1:14 p.m. train usually arrived. The commuter train was operated by BNSF under a purchase of service agreement with the Northeast Illinois Regional Commuter Railroad Corporation, which does business as Metra.*fn1

¶ 3 The Berwyn station is in a legislatively designated "quiet zone," which means that the train's horn should be sounded only in emergencies. There are three train tracks, the northern track, the center track, and the southern track, which are adjacent to each other and run east and west. The Berwyn station building is located on the south side of the tracks, between Grove Avenue on the west and Oak Park Avenue on the east. Speakers for the public announcement system are located on each side of the station building. Announcements regarding track and schedule changes emanate from these speakers on the southern platform. A small shelter is located on the northern platform, directly north of the Metra station building. There are no speakers on the northern platform. Yellow "tactiles" border the pavement along the edge of the northern and southern platforms. Though passengers could hear the bells and see the signal lights when the gates went down, the gates would sometimes stay down and the bells would start to ring again. When commuters are on the north platform and the crossing gate is down, that gate is behind the waiting passengers. There is no gate inside the platform area.

¶ 4 The 1:14 p.m. eastbound train to Chicago arrived on the southern track of the Berwyn station on 90% of its runs, and passengers regularly boarded that train from the southern platform. Occasionally, the eastbound train ran on the northern tracks, requiring passengers to board from the northern platform. On the date of the accident, the 1:14 p.m. commuter train was rerouted to the northern track due to an unexpected westbound freight train that was traveling on the center track. The warning devices at the Grove Avenue crossing were working, and the gates on the north and south sides of the crossing were in the down position, and the bell signals had been activated for 31 seconds before the commuter train reached the Grove Avenue crossing. Also, the train's bell was ringing as it approached the crossing, but the horn had not been sounded.

¶ 5 Eskew's brother, Gary, who also is legally blind, testified that he was familiar with Eskew's daily route to the Berwyn train station. Gary stated that Eskew took small steps and walked slowly, as they had been taught. Gary also testified that he was familiar with the Berwyn station. Though the announcements could be heard, they could not always be understood. This was particularly true if you were standing on the north platform.

¶ 6 Eskew's wife, Heidi, testified that she had seen her husband wait at the crossing when a train was there. She stated that Eskew would turn his head to check whether a train was coming. He also listened for the horn or whistle to determine if there was a train. Heidi's mother, Judith Henderson, confirmed that Eskew walked very carefully. Eskew's neighbor, Anthony Castrogiovanni, testified that Eskew was very methodical and always took the same route to the train station. Castrogiovanni stated that Eskew stopped for the lights and bells at Grove Avenue.

¶ 7 Valerie Fitzgibbons, the BNSF station agent, had seen Eskew in the waiting area on previous occasions and was aware that he had taken the 1:14 p.m. train regularly during the prior two years. She knew that he was legally blind and had observed him holding a paper very close to read it and using a small device to see down the track. According to Fitzgibbons, Eskew walked hesitantly with a careful gait and did the same thing every day.

¶ 8 Fitzgibbons testified that, on the day of the accident, she was informed about the track change for the commuter train just minutes before it was due to arrive. She then made two identical announcements to advise waiting passengers that the eastbound train to Chicago would board from the north rather than the south platform, stating "please cross over to the north platform." She made the first announcement before the freight train arrived, and she made the second announcement while the freight train was passing through the station. Fitzgibbons acknowledged that she did not inform the waiting passengers that two trains were coming into the station, and she was aware that the announcements could not always be heard when a train was going by.

¶ 9 Fitzgibbons stated that, after making the two announcements, she called the BNSF train conductor and advised her that passengers on the south side of the station needed to get to that train. Fitzgibbons testified that she asked the conductor to hold up or slow and wait for those passengers to cross. According to Fitzgibbons, she specifically asked the conductor to hold up before Grove Avenue, and the conductor acknowledged that request and agreed to wait. The commuter train arrived at the station between 5 to 15 seconds after the freight train had passed.

¶ 10 Beverly Thompson, the BNSF conductor on the incoming commuter train, testified that, on the day of the accident, she received a call from Fitzgibbons, who told her that there were passengers standing on the wrong side of the tracks. Thompson testified that she told Fitzgibbons that the train would wait for passengers to cross over to the north side of the tracks. She then asked the train engineer to stop short of Oak Park Avenue, but she did not tell the ticket agent that they were going to stop before Oak Park Avenue, rather than Grove Avenue.

¶ 11 Thompson further testified that she saw a man, whom she later learned was Eskew, standing just north of the yellow "tactile" strip on the northeast corner of the Grove Avenue crossing. He was looking east, and she did not know who he was. When the freight train cleared the station, the commuter train was almost at the edge of Grove Avenue, and the gates were down. As she was moving back to the vestibule, she heard the sound of the train striking Eskew. When she got off the train, she recognized Eskew as a man who had ridden the train before and was sight disabled. Thompson testified that Eskew was not in a position of safety when he was standing inside the pedestrian gate on the platform.

¶ 12 Engineer John Szychlinski testified that he was advised by Thompson that there were passengers waiting on the south side of the tracks. According to Szychlinski, the train was to stop short of the island circuit at the Oak Park Avenue crossing in order to allow the gates to "time out" and go up, thus permitting waiting passengers to cross the tracks safely at Oak Park Avenue.

Szychlinski stated that he started to slow the train about 300 feet west of Grove Avenue as the freight train was clearing Grove. He saw a person, later determined to be Eskew, standing close to the Grove Avenue crossing. Eskew was facing east, with his back to the approaching commuter train, and then turned his head to the south but did not move. Szychlinski testified that Eskew went out of his view as the commuter train started to occupy the crossing. At the east end of the crossing, he heard a bang and put the train into emergency mode. In Szychlinski's opinion, Eskew was in a place of safety when he was standing on the walkway or the very edge of the platform.

¶ 13 Trainmaster Timothy Leppert testified that an engineer or conductor is required to sound the horn if they see a passenger who is not in a place of safety. That circumstance is considered to be an emergency, and the city's "quiet zone" rule prohibiting the use of the horn does not apply. In addition, the conductor can tell the engineer to stop.

¶ 14 Several passengers testified that it was difficult to hear and understand the announcements on the north platform. Katherine Zack testified that she was on the north platform on the day of the accident, and she saw Eskew standing on the sidewalk next to the tracks as the commuter train started to cross Grove Avenue. According to Zack, Eskew then stepped onto the first rail and was hit by the train.

¶ 15 The plaintiffs presented expert testimony from Kenrick Van Wyk, an acoustical engineer, who testified that, in his opinion, the passing freight train and the lack of speakers on the north side of the tracks interfered with the intelligibility of the announcements made over the public address system. Van Wyk also expressed his opinion that, because the intelligibility of the announcement had been reduced, it was more likely than not that the message was confused, causing Eskew to cross the tracks. During Van Wyk's testimony, the jury heard a recording of an announcement by a station agent at the Berwyn station, which was overlaid with a recording of a freight train to reflect the circumstances that existed on the northern platform prior to the accident. Van Wyk explained that the lack of speakers on the north platform rendered Fitzgibbons' announcement less intelligible in that location. According to Van Wyk, if the word "north," which contains soft consonants, was eliminated from that announcement, Eskew likely would have understood that he was supposed to cross over the tracks to the other platform. Van Wyk acknowledged, however, that he had no way of knowing what Eskew actually heard prior to the accident.

¶ 16 Daniel Melcher, the plaintiffs' expert in transportation safety engineering, testified that BNSF owns the Berwyn train station and platform, which are located on that railroad's right of way. BNSF operates its own freight trains and Metra commuter trains, and the train personnel are BNSF employees. The station's public address system was paid for by Metra at the time it was installed, but is operated jointly by BNSF and Metra. Therefore, announcements can be made by the station agent who is on-site, or they can be made remotely by the "Voice of Metra."

¶ 17 Melcher explained that, when the crossing gates are down, Grove Avenue is part of the Berwyn station platform because that is where the train stops and is one of the places where passengers board and alight from the train. The crossing gates are outside of the station and are designed to control through traffic. There are no pedestrian gates inside the station area.

¶ 18 Melcher opined that the Berwyn station is dangerous and a high-risk train-pedestrian location. In describing the functionality of the crossing devices, Melcher stated that the bells begin ringing when the signal has been activated, which is about 30 seconds before the train is due to arrive. The gates begin to move down about five seconds later. When the gates are in the down position, the bells stop because they are not required; the gates warn that a train is approaching. The bells remain silent as the train travels through the crossing and begin sounding again when it has cleared the crossing and the gates go back up.

¶ 19 According to Melcher, the ringing bells do not provide sufficient warning to passengers who are inside the platform area, particularly where two trains are traveling through the station. Melcher explained that, if a second train is approaching the station at about the same time that the first train has departed and cleared the station, a blind person would not know whether the ringing bells indicate that the first train has left and it is safe to cross the tracks or that a second train is arriving. Melcher stated that these auditory signals could indicate that it is clear to cross the tracks because the train has left the station. In Melcher's opinion, these signals create a hazard because there is no difference in the tone of the warning bells and there is no physical cue, such as a gate, to inform a pedestrian of an approaching train.

ΒΆ 20 Melcher also expressed his opinion that the lack of speakers on the north platform violated accepted standards of transportation safety care, and the public address system should have been sufficient to inform passengers on the north platform that they did not need to cross. In particular, Melcher stated that passengers on the north platform ...

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