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Lindquist v. Chicago and Northwestern Transportation Co., No. 2-98-1450

2nd District, 22 December 1999

JUSTICE GALASSO delivered the opinion of the court:

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 the credibility of crossing signals. 'One false positive can undo a lot of previous learning,' he said. Dr. Leibowitz said false warnings at one crossing also have an effect on driver behavior at other crossings. 'The effect of false positives is not for just the given crossing, it's for the whole system. And it spreads across different grade crossings and across different people.' "

Also contained in the record are the depositions of numerous people who had experienced problems at the crossing. There was significant testimony that the gates would often be activated when no train was in the area and that the gates would sometimes improperly stay down for long periods of time. A number of people testified that, after the crossing gates had been down for a long time, they saw numerous cars drive around the gates. A substantial portion of those testifying admitted that they too drove around the gates, after waiting a considerable amount of time for a train to pass through the crossing. For example, Terry Ellis testified that he was the retired president and chairman of the board of the First National Bank in Crystal Lake. He had crossed the subject crossing everyday while commuting to work. Ellis estimated that, on a daily basis, he would cross the crossing four to six times a day. He further testified that before the date of the subject accident, he observed "hundreds of cars" drive around the crossing's lowered gates. He estimated that at least twice a month he observed the gates down and the flashers working when no train was passing through the crossing. Ellis stated that he complained about the situation to the Crystal Lake police department. Ellis stated that he drove around the crossing gates every time the gates were down and no train was coming. Ellis also testified that before the subject accident there were occasions when he was at the crossing and observed a train parked to the west of the crossing while the gates were down and their flashers were activated. He had the impression that the gates and flashers were activated by the parked train. Ellis further stated that after observing the false and unnecessary activations for so many years, he had lost faith in the gates as a credible warning system for the approach of a train.

Plaintiff Charles Lindquist stated that Jean and he lived within a few blocks of the crossing. On many occasions before the accident, he and Jean were in the car together at the crossing, when they saw the signals function without a train being present. He testified that he drove around the down gates with Jean in the car many times. Charles had also observed numerous other motorists drive around the down gates before and after the accident. Further, before the accident, Charles and Jean had talked about the gates being down when no train passed through the crossing. Charles testified that they talked about the crossing situation at home, as well as in the car, and that excessive activations at the crossing were "very commonplace and so [we] discussed it from time to time." Charles also stated that sometimes the crossing situation "was an abomination. You couldn't rely on anything."

Several people testified regarding whether the "signal bungalow" located southeast of the crossing blocked a northbound driver's view of the tracks to the east. One witness stated that the signal bungalow did not block the driver's view eastward. Another testified that the signal bungalow caused some problem in looking to the tracks to the east, while a third stated that the structure blocked the view to the east. Additionally, there was expert testimony that excessive or unnecessary activation of automatic warning signals will cause the public to disregard the warning signals and not look for oncoming trains.

There was documentary evidence that in 1980, Crystal Lake officials had notified defendant of the continuing problems related to the crossing's gates being improperly activated. In 1982, in an attempt to improve the functioning of the crossing's warning system, defendant installed grade crossing predictors in the crossing's circuitry system.

We first address plaintiffs' contention that the record contains substantial evidence that defendant created and permitted to exist for a number of years a hazardous condition at the crossing that caused, in whole or in part, Jean's injuries. Plaintiffs also maintain that where the evidence indicates that both plaintiff and defendant breached independent duties, it is the trier of fact's province to determine the relative degrees of fault.

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Missouri Pacific R.R. Co. v. American Re-Insurance Co., 286 Ill. App. 3d 129, 133 (1996). Summary judgment is a drastic measure and should only be granted if the movant's right to judgment is clear and free from doubt. Missouri Pacific, 286 Ill. App. 3d at 133. In appeals from rulings on summary judgment, the court conducts a de novo review. Missouri Pacific, 286 Ill. App. 3d at 133. Further, a plaintiff may not recover for any alleged negligence on defendant's part unless such negligence proximately caused the plaintiff's injuries. Hamilton v. Atchison, Topeka & Santa Fe Ry. Co., 175 Ill. App. 3d 758, 760 (1988).

There is little dispute that Jean acted negligently in driving around the lowered crossing gates and onto the railroad tracks. By doing so, Jean violated a statute designed for the protection of human life and property. Ill. Rev. Stat. 1989, ch. 95