Court of Appeals of Illinois, First District, Second Division
MARJORIE McDONALD, Executrix of the Estate of Thomas McDonald, Deceased, and MARJORIE McDONALD, Individually, Plaintiffs-Appellees,
NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION, d/b/a Metra/Metropolitan Rail, Defendant-Appellant.
Defendant commuter railroad did not owe plaintiff’s decedent any duty to warn him of an oncoming train, since the danger the train posed was open and obvious, yet decedent tried to cross the tracks before the train arrived at the station; therefore, the denial of defendant’s posttrial motion for judgment n.o.v. was reversed.
Appeal from the Circuit Court of Cook County, No. 07-L-2551; the Hon. Arnette R. Hubbard, Judge, presiding.
James A. Fletcher and Peter C. McLeod, both of Fletcher & Sippel LLC, and Sue-Ann Rosen, of Metra Law Department, both of Chicago, for appellant.
Leslie J. Rosen, of Chicago, for appellee.
Justices Quinn and Neville concurred in the judgment and 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 defendant's posttrial motion for a judgment n.o.v. or a new trial. This court affirmed the circuit court's orders, concluding that defendant had a duty to warn the decedent of the oncoming train, that the jury's answers to the special interrogatories were not inconsistent with its verdict, that plaintiff presented sufficient evidence to prove that defendant's negligence was a legal cause and a cause in fact of the accident, and that defendant was not prejudiced by the circuit court's alleged error in allowing plaintiff to present evidence showing that defendant was negligent for having failed to install and activate pedestrian signals and argue that claim to the jury. McDonald v. Northeast Illinois Regional Commuter R.R. Corp., 2011 IL App (1st) 102766. Our supreme court subsequently decided Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948, and, in the exercise of its supervisory authority, directed this court to vacate its previous order and reconsider the prior decision in light of Choate. McDonald v. Northeast Illinois Regional Commuter R.R. Corp., No. 112971 (Ill. Jan. 30, 2013) (supervisory order). For the reasons that follow, we reverse.
¶ 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 on April 25, 2002, the decedent was struck by one of defendant's trains that was running express through the North Glenview station toward Chicago as the decedent crossed the tracks at the pedestrian crosswalk. Plaintiff also asserted that defendant had installed pedestrian signals at the North Glenview station, but had not yet activated them at the time of the accident, and that the decedent had since died of causes unrelated to 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 defendant breached its duty 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 sufficient lookout; failing to adequately warn the decedent of the approach of the 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 also 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 plaintiff sustained a loss of consortium, society, and support.
¶ 5 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.
¶ 6 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, plaintiff and the decedent 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.
¶ 7 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 ...