Rub v. Consolidated Rail Corp.

771 N.E.2d 1015, 331 Ill. App. 3d 692, 265 Ill. Dec. 56, 2002 Ill. App. LEXIS 442
CourtAppellate Court of Illinois
DecidedMay 28, 2002
Docket1-99-2121
StatusPublished
Cited by10 cases

This text of 771 N.E.2d 1015 (Rub v. Consolidated Rail Corp.) 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
Rub v. Consolidated Rail Corp., 771 N.E.2d 1015, 331 Ill. App. 3d 692, 265 Ill. Dec. 56, 2002 Ill. App. LEXIS 442 (Ill. Ct. App. 2002).

Opinion

JUSTICE McBRIDE

delivered the opinion of the court:

On November 25, 1992, Howard G. Rub, Jr. (Rub), was killed when a train owned and operated by defendant-appellee Consolidated Rail Corporation (Conrail) collided with his vehicle. The accident occurred at the intersection of Morris Road and the Conrail tracks in Dwight, Illinois. Leann Rub (plaintiff), widow of Rub, filed a wrongful death action against Conrail in her individual capacity and on behalf of the estate of Howard G. Rub, Jr. Among other allegations, Leann Rub alleged in her second amended complaint that the Morris Road crossing was improperly maintained by Conrail, that Conrail failed to provide adequate warning of approaching trains at the crossing, and that the operators of the train at issue were negligent by failing to slow the train to avoid a collision with Rub’s vehicle. Conrail responded by contending that Rub was contributorily negligent in causing the collision that resulted in his death. A jury returned a verdict in favor of Conrail, and the trial court entered a judgment on the verdict against Leann Rub and the estate of Howard G. Rub, Jr., on November 27, 1997. Plaintiff filed a posttrial motion, which was denied by the trial court on May 28, 1999. Plaintiff now appeals.

Several questions are raised on appeal. First, whether the trial court erred during voir dire when it allowed counsel for defendant to question prospective jurors on facts not yet in evidence. The second, third, fourth, and fifth issues are discussed in the nonpublished portion of this opinion. Second, whether the trial court erred by giving certain jury instructions. Third, whether the trial court erred by excluding evidence as to the extrahazardous nature of the Morris Road crossing. Fourth, whether the trial court gave the jury improper limiting instructions that were prejudicial to plaintiff. Fifth, whether the cumulative effect of the errors denied plaintiff the right to a fair trial. We state the following background facts.

On the evening of the accident, Rub was driving southbound on Morris Road at approximately 55 miles per hour. The Conrail train tracks run east to west and cross Morris Road at a perpendicular angle. The evening was overcast and the blacktop pavement was wet. Approximately 390 feet north of the intersection, a circular advance warning sign with a yellow background was posted displaying a black X and a black RR, indicating to approaching motorists that a railroad crossing was ahead. At the crossing itself, a cross buck sign was posted. A cross buck sign is a cross on a wooden post that indicates the presence of a railroad crossing. There were no flashing lights at the intersection, no gates, and no lights designed to illuminate the grade crossing. The grade was elevated at the intersection.

As Rub approached the intersection, a westbound Conrail train consisting of 2 engines and 44 freight cars was advancing on the same crossing at 40 miles per hour. James Grimes, the train’s engineer, testified the train’s lights were on. He also stated that he saw Rub’s vehicle approaching the intersection at the same distance and the same rate of speed. He said that he became concerned because it did not appear that Rub was going to stop. Grimes stated that Rub did not seem to respond to a whistle sequence he had blown in order to warn him of the approaching train. He further testified that he began a series of short blasts on the whistle up to the impact with Rub’s vehicle. Also prior to impact, Grimes said that he threw the emergency brake on the train before Rub reached the cross bucks at the intersection. The record revealed that Grimes and the train’s conductor, Charles Rice, were reluctant to put the train into emergency because they feared derailment of the train, their safety, and the safety of the public in the surrounding area. Rice testified that it was unsafe to activate the emergency brake and risk putting the train into emergency when Rub had plenty of time to stop.

The record reveals that Rub continued to proceed to the intersection. His vehicle was hit broadside by the locomotive and the collision resulted in his death. The evidence showed no indication of braking marks or skid marks anywhere in the intersection.

In plaintiffs case in chief, Daryl Holt, then president of the Village of Dwight, testified that he became involved in negotiating the cleanup of overgrown brush at the intersection which made the crossing difficult to see. He also stated that headlights of trains were difficult to see because they blended into the background lighting in the area. Holt said that Conrail had not remedied these problems prior to Rub’s accident.

Two Dwight residents who lived in close proximity to the intersection testified that they never heard the train’s whistle blow.

In addition, Tony Montgomery, a former employee of Rub, testified that he was driving in another car closely behind Rub’s auto at the time of the accident. He said that he neither saw nor heard the train approaching until it struck Rub’s vehicle.

John Edward Baerwald, one of plaintiffs expert witnesses, testified that the surrounding sources of fight from homes and other public fights camouflaged the headlights of the on-coming train. He also characterized the crossing as extrahazardous as defined by railroad engineers. Baerwald further stated that, at minimum, the crossing should have had two alternately flashing red fights “or[J more desirably[,] flashing fights plus *** short arm gates *** that drop down and close off the approach lanes.”

Henry Lowell Lazara, a specialist in forensic fighting, also testified for plaintiff. He stated that he inspected the intersection at Morris Road and determined it to be an “unfighted area.”

Michael Massie, plaintiffs railroading expert, testified that Grimes and Rice were negligent in their failure to apply the train’s brakes. He specifically stated that Grimes could have slowed the train down to 35 miles per hour in the distance to the crossing, which would have allowed Rub’s vehicle to clear the track.

To the contrary, Conrail’s expert witness, Thomas Burnes, an engineer, stated that he had inspected the intersection on four separate occasions. He said that the headlamps of locomotives he observed were clear and distinctly different from any of the background lights. He further testified that, in his opinion, there were no material obstructions to visibility that would have prevented a motorist from seeing and identifying an approaching train. Thus, he concluded that a motorist would have had an opportunity to observe the train and to take evasive action if necessary. Burnes said that there are certain factors that make an intersection extrahazardous, specifically, where the hazard is so intense or unusual that it exceeds the capability of a motorist, driving in due care, to appreciate the risk involved and to exercise the appropriate level of caution. He further stated that he did not characterize this intersection as extrahazardous because crossing it was not beyond the capabilities of motorists that were operating their vehicles in due care.

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Cite This Page — Counsel Stack

Bluebook (online)
771 N.E.2d 1015, 331 Ill. App. 3d 692, 265 Ill. Dec. 56, 2002 Ill. App. LEXIS 442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rub-v-consolidated-rail-corp-illappct-2002.