Magna Bank of McLean County v. Ogilvie

601 N.E.2d 1091, 235 Ill. App. 3d 318, 176 Ill. Dec. 393, 1992 Ill. App. LEXIS 1490
CourtAppellate Court of Illinois
DecidedSeptember 16, 1992
Docket1-91-0649
StatusPublished
Cited by8 cases

This text of 601 N.E.2d 1091 (Magna Bank of McLean County v. Ogilvie) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Magna Bank of McLean County v. Ogilvie, 601 N.E.2d 1091, 235 Ill. App. 3d 318, 176 Ill. Dec. 393, 1992 Ill. App. LEXIS 1490 (Ill. Ct. App. 1992).

Opinion

PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Defendants appeal the verdict in a wrongful death action in which the deceased, Robin A. LeFebvre, was struck and killed by defendant Chicago, Milwaukee, St. Paul, & Pacific Railroad Company’s (Milwaukee Road’s) freight train at a pedestrian crossing in Glenview which was operated by defendant National Railroad Passenger Corporation (Amtrak), and where the jury reduced the award for decedent’s contributory negligence by 30% and awarded $914,680 in damages to plaintiff.

Defendants contend on appeal that: (1) the jury’s verdict is against the manifest weight of the evidence because decedent’s failure to exercise due care for her own safety was the sole proximate cause of the accident; (2) the defendants did not have a duty to operate the train at a lesser speed or to install gates, flashing lights and signs at the crossing; (3) the court erred in refusing defendants’ tendered instruction regarding the duty of an individual at a railroad crossing; (4) the court erred in prohibiting the impeachment of plaintiff’s railroad accident expert, Michael Massie; (5) plaintiff’s violation of defendant’s motion in limine regarding testimony on safeguards at other crossings was error; and (6) it was error to allow Dr. Julien Christensen, plaintiff’s human factors expert, to give reconstruction testimony and to testify as an expert on the safety features of the crossing.

We affirm the jury’s findings.

On October 12, 1983, Robin A. LeFebvre, who lived in South Carolina, was visiting friends in Winnetka before attending a business conference in Milwaukee. Intending to take an Amtrak train, she was driven to the Glenview station by Nicholas Kershaw, who parked in a lot directly west of the railroad tracks. Decedent crossed the tracks on a wooden walkway level to the tracks to purchase a ticket in the station building which was east of the two sets of north-to-south tracks.

After purchasing a ticket, decedent exited the station building, intending to recross the tracks to retrieve her luggage from the Kershaw car. It was raining, with the wind blowing, and she had her umbrella open, angled north-northwest. As the defendant’s nonstop freight train approached from the north, decedent walked west across the tracks, apparently failing to look in the direction of the oncoming train, and was struck and killed.

Plaintiff’s amended complaint charged both defendants with (1) failure to provide warning lights, bells or a gate at the depot to alert pedestrians of the danger of oncoming trains; (2) failure to announce to pedestrians the approach of such trains; (3) failure to post signs at the depot that trains pass over the crossing at high speeds without stopping; and (4) failure to provide safe pedestrian access from the parking lot to the station building.

The complaint included three other counts as to the Milwaukee Road, the operator of the freight train: (1) that it operated its train at a speed greater than was warranted under the circumstances; (2) that it failed to blow the train whistle prior to passing the station at a point sufficient to provide a warning to decedent; and (3) that it failed to keep a proper lookout for pedestrians.

At trial, the evidence established that the train consisted .of 2 engines, 20 cars and a caboose; that the timetable speed for freight trains through Glenview was 50 miles per hour; that the train was traveling approximately 48 miles per hour as it approached the Glen-view station that day; that the train was equipped with a bell and a whistle; and that the bell sounded prior to the incident but the whistle did not.

The lead engine was occupied by a brakeman and an engineer. The brakeman testified that when the train was approximately 1,800 feet from the station, he first saw the decedent standing on the platform. He stated that after she opened her umbrella near the door of the station building, he never took his eyes off of her and watched her walk toward the crosswalk. As she approached the “danger zone” painted on the platform, the brakeman told the engineer that he saw a woman who he did not believe was going to stop, and that he thought she might cross in front of the train. The brakeman testified that he watched the decedent cross the eastern set of tracks and continue walking on the crosswalk toward the tracks on which the freight train was traveling. When the train was approximately 15 railcar lengths from the decedent, the engineer reduced air in order to set the brakes. The brakeman testified that decedent was approximately three railcar lengths from the train when she stepped onto the crosswalk in front of it and the engineer applied the brakes and gave a short blast of the whistle.

Because the engineer was deceased by the time of trial, portions of his discovery deposition were read into evidence. The engineer stated that he only glimpsed decedent as she exited the building and never saw her walk toward the train. He stated that the train was traveling at 48 miles per hour and that he did not sound the whistle or apply the brakes prior to striking decedent.

The Amtrak ticket agent inside the Glenview station at the time of the accident testified that he announced on the public address system that a nonstop freight train was coming through the station. The agent stated that he made the announcement prior to waiting on decedent.

However, two passengers who entered the station building after decedent did not recall hearing an announcement regarding a passing train, either while they were in the building or outside as they approached the building; nor did they see the agent make an announcement. They stated that while they were aware of a freight train passing through the premises because of the loud rumbling the train made, they never heard a whistle before it passed.

Nicholas Kershaw testified that as decedent walked slowly from the station, with her umbrella up against the rain, she never showed any awareness of the approaching train. Mr. Kershaw stated that as he sat in his car in the parking lot, he watched her cross one set of tracks and start across the second set when he saw the locomotive come into the crosswalk and heard a short whistle at the same time. He never heard an announcement over the loudspeaker warning of an approaching train.

Dr. Julien Christensen testified on plaintiff’s behalf as a human factors expert. Upon evaluating the safety features at the station, he stated that the wooden plank crosswalk was hazardous because a pedestrian would be concerned about slipping and falling and being hit by a train. Dr. Christensen found that the condition of the crosswalk, with gaps between the worn and uneven planks and the eight-inch downward slant on each end, would occupy much of a pedestrian’s attention, especially on a rainy, windy day.

Dr. Christensen also expressed the opinion that the train and the station provided inadequate warnings to decedent of the approaching train, and that 48 miles per hour is not a safe speed when traveling through a passenger station.

Michael Massie testified for plaintiff as a railroad accident investigator, stating that the warning system provided decedent was inadequate.

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Bluebook (online)
601 N.E.2d 1091, 235 Ill. App. 3d 318, 176 Ill. Dec. 393, 1992 Ill. App. LEXIS 1490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/magna-bank-of-mclean-county-v-ogilvie-illappct-1992.