National Bank v. Norfolk & Western Railway Co. ( 1978 )

MR. JUSTICE MORAN

delivered the opinion of the court:

On January 5, 1970, in Bloomington, an auto operated by the decedent, Ray Weldon Groves, was struck by a freight train operated by Norfolk & Western Railway Company. Groves died seven days later as a result of the collision. While a four-count amended complaint was filed in the circuit court of McLean County, against additional defendants, we are here concerned only with counts I, II and IV, which went to the jury, and with defendants Norfolk & Western Railway Company and Wabash Railroad Company (hereafter referred to in the singular as defendant).

Counts I and IV were brought by the administrator of decedent’s estate, the National Bank of Bloomington (plaintiff-administrator), and count II was brought by the decedent’s widow, Marie Booe Groves, individually (plaintiff-wife).

Count I charged that defendant’s negligent failure to provide adequate warning devices for motor vehicles at the instant railroad crossing and its negligent violation of rules of General Order No. 138 of the Illinois Commerce Commission (ICC) caused the wrongful death of decedent. Plaintiff-administrator sought pecuniary damages under the Wrongful Death Act (Ill. Rev. Stat. 1969, ch. 70, pars. 1,2). Count II incorporated the allegations of count I, and alleged that, as a result of defendant’s negligence, plaintiff-wife became liable under the family expense act (Ill. Rev. Stat. 1969, ch. 68, par. 15) for certain medical, hospital and funeral expenses for which she sought compensatory damages. Count IV charged defendant with the wilful violation of General Order No. 138, Rule 205 of the ICC, by its failure to keep its right-of-way clear of obstructions. Plaintiff-administrator sought both actual and punitive damages under the Public Utilities Act (Ill. Rev. Stat. 1969, ch. Ill 2/3, par. 77). While one paragraph of count IV recites that the action was brought under both the Public Utilities Act and the Wrongful Death Act, the pleadings in the body of the count allege violation of the Public Utilities Act.

The jury’s verdict awarded $20,000 pecuniary damages under count I for the wrongful death of the decedent; $4,348.60 compensatory damages under count II for medical, funeral and related expenses; and $300,000 punitive damages under count IV for the wilful violation of Rule 205 of General Order No. 138 of the ICC. The circuit court entered judgment for the defendant, notwithstanding the verdict, as to the $300,000 punitive damages. Plaintiff-administrator appealed the judgment n.o.v. that vacated the award for punitive damages under count IV. Defendant appealed from the two judgments entered against it under counts I and II.

The appellate court affirmed the judgments entered under counts I and II, but a majority of that court reversed the circuit court’s judgment for defendant, n.o.v., on the question of punitive damages and reinstated the award of $300,000. (46 Ill. App. 3d 757.) The appellate court unanimously issued a certificate of importance to this court in this case and in a companion case, Churchill v. Norfolk & Western Ry. Co. (1977), 46 Ill. App. 3d 781, aff'd (1978), 73 Ill. 2d 127.

Defendant claims that the decedent was guilty of contributory negligence as a matter of law; that section 73 of the Public Utilities Act (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77) does not create a cause of action in a personal representative for compensatory or punitive damages in a death case; that defendant did not violate Rule 205 and was not, therefore, guilty of wilful misconduct which would entitle plaintiff-administrator to recover punitive damages under section 73 of the Public Utilities Act; and that the award of $300,000 punitive damages was excessive.

Defendant’s assertion that the decedent was contributorially negligent rests upon the following evidentiary facts. The decedent was 7 3 years old, a careful driver, and in good health on the day of the collision. He had traversed the railroad crossing in question on numerous occasions so that he was aware that trees, shrubbery and a house obstructed clear visibility of the railroad tracks to the north when approaching the crossing from the east. Site-line measurements to the north along the railroad tracks, taken by defendant from various points east of the crossing, indicated that from zero to 10 feet to the east of the crossing, one can see a quarter of a mile down the tracks; from 20 feet, one can see 450 feet; from 30 feet, one can see only 110 feet; from 40 feet, one can see only 85 feet; from 50 feet, one can see 80 feet; and from 100 feet, one can see 60 feet. The crossing itself was not equipped with any warning device other than the traditional crossbuck sign, stating “Railroad Crossing. ”

The decedent was traveling west at 20 to 35 miles per hour on a street which had a posted speed limit of 30 miles per hour. The only person who testified that he saw the decedent’s vehicle immediately before impact was a trainman seated on the east side of the moving train. The trainman testified that he observed the car for less than a total of one second: a split second before the car disappeared behind the obstructing house and a split second when it emerged on the other side. The train was moving at a speed of 22 to 35 miles per hour as it approached the crossing. Its whistle had been blowing from the time the train was approximately 1,500 feet north of the crossing. Its light was on and its bell was ringing. The windows of the train and the windows of decedent’s vehicle were closed due to the cold weather. Snow was on the ground and the pavement was slippery. Evidence indicated that neither the train nor the decedent braked prior to impact and that the decedent did not see or hear the train approaching although he did look both ways. Evidence further established that the front of the decedent’s vehicle and the front of the train collided.

In answer to a special interrogatory, the jury specifically found that the decedent was not guilty of contributory negligence. Under the familiar Pedrick standard, the finding in this case may be overturned only if all the evidence, when viewed in its aspect most favorable to plaintiffs, so overwhelmingly favors defendant that no finding of the decedent’s freedom from contributory negligence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.

It is well established that railroad crossings are dangerous, and that in approaching them a person is required to diligently use the senses of sight and hearing and to exercise a degree of care commensurate with the known danger. (Tucker v. New York, Chicago & St. Louis R.R. Co. (1957), 12 Ill. 2d 532, 535; Moudy v. New York, Chicago & St. Louis R.R. Co. (1944), 385 Ill. 446, 452.) The law casts disfavor on the person who claims that upon approaching an unobstructed crossing he looked but did not see an oncoming train. However, the law readily acknowledges that if a crossing is obstructed, a person, diligently using the senses of sight and hearing and exercising the ordinary care expected under the circumstances, might be excused for failing to perceive that the train was approaching. (Tucker v. New York, Chicago & St. Louis R.R. Co. (1957), 12 Ill. 2d 532, 536.) A person is not required/, to come to a complete stop before traversing an obstructed crossing, nor is he required to keep a continuousTookout in the direction from which a train may be coming. (Chicago & Alton R.R. Co. v. Sanders (1894), 55 Ill. App. 87, 91, aff’d (1895), 154 Ill. 531; Baker v. Norfolk & Western Ry. Co. (1970), 120 Ill. App. 2d 296, 310, quoting Hughes v. Wabash R.R. Co. (1950), 342 Ill. App. 159, 167.) Generally, in those cases in which a crossing is obscured, whether a plaintiff exercised due care and whether the obstruction prevented the plaintiff from perceiving an oncoming train are questions of fact for the jury and not matters of law which would require the court to intervene. Humbert v. Lowden (1944), 385 Ill. 437, 445; Gray v. Terminal Railroad Association (1962), 37 Ill. App. 2d 376, 379.

In the case at bar, it is conceded that the crossing was obstructed by trees, shrubbery and a house. Evidence indicated that the decedent looked both ways, but that he did not see or hear the train approaching from the north. The trainman, who was on the train and looking in the direction of the decedent’s vehicle, testified that he saw the decedent’s car for a total of less than one second. We conclude, when viewing this and all the other evidence in a light most favorable to plaintiffs, that the jury could reasonably have found the decedent was exercising care for his own safety. The jury’s special finding that the decedent was not contributorially negligent must, therefore, remain undisturbed.

Defendant next contends that section 73 of the Public Utilities Act does not create a cause of action in a personal representative for compensatory or punitive damages in a death case. Defendant’s contention actually combines two distinct propositions: first, that section 73 of the Public Utilities Act does not create a cause of action in a personal representative for compensatory and punitive damages for the wrongful death of decedent, and, second, that the Act does not create a cause of action in a personal representative for compensatory and punitive damages for the predeath injuries to the decedent. We need not address the first proposition since, in count I, plaintiff-administrator recovered damages for the death of decedent under the Wrongful Death Act, and since, in count IV, plaintiff-administrator does not seek damages for wrongful death. As to the second proposition, however, we hold that plaintiff-administrator may recover compensatory and punitive damages under the Public Utilities Act on the basis of the injuries decedent sustained prior to his death.

Plaintiff-administrator alleged in count IV that the decedent received extremely serious injuries which, before he died, required his hospitalization and the administration of medical services. Evidence at trial established that the decedent was conscious but in a state of shock during the seven days between his injury and his death. The jury was instructed on the questions to be resolved under count IV: Was the decedent injured and killed as a result of defendant’s violation of the ICC rule? Was defendant’s violation wilful? Was the decedent free from contributory wilful and wanton conduct? Did the decedent sustain damages to the extent claimed? On this count, the court further instructed the jury that the plaintiff-administrator had the burden of proving that the decedent was free from contributory wilful and wanton conduct, that defendant wilfully violated the ICC rule and that the wilful violation was a proximate cause of the decedent’s injuries and death. At defendant’s request, special interrogatories were submitted to the jury on the questions of defendant’s wilful and knowing violation of the ICC rule and of the decedent’s contributory wilful and wanton conduct. The jury answered the special interrogatories against defendant and entered a verdict of $300,000 punitive damages in favor of plaintiff-administrator. It is clear that by awarding punitive damages on count IV, the jury also found that the decedent sustained actual damages prior to his death as a result of defendant’s wilful violation of the ICC rule.

Count IV was brought under section 73 of the Public Utilities Act, which provides:

“In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, such public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment. An action to recover for such loss, damage or injury may be brought in any court of competent jurisdiction by any person or corporation.” (Emphasis added.) Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77.

There can be no question that the decedent’s pain and

suffering which resulted from defendant’s wrongful and wilful act is an “injury” contemplated by the Act and one for which a surviving person could recover both compensatory and punitive damages. The law, of course, has always recognized that, if a person survives, he may bring a common law or statutory action against a party whose wrongful conduct has caused him such personal injury. At common law, however, the same action would abate upon the death of the injured person. To remedy this injustice, a survival statute was enacted (originally in 1872) to allow an action, such as the instant action to recover damages for an injury to the person, to survive the death of the injured person. (See Ill. Rev. Stat. 1977, ch. 110½, par. 27—6.) The Survival Act does not create a statutory cause of action. It merely allows a representative of the decedent to maintain those statutory or common law actions which had already accrued to the decedent before he died.

It is now firmly established in Illinois that the Wrongful Death Act (Ill. Rev. Stat. 1977, ch. 70, par. 1 et seq.) is not the exclusive remedy when death results from a given tortious act. (Saunders v. Schultz (1960), 20 Ill. 2d 301; Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423.) The reason for this rule was best expressed in Murphy when this court had an opportunity to examine the interrelationship between survival actions and wrongful death actions. There, the decedent’s estate sought recovery under the common law for the physical and mental suffering and for lost wages sustained by the decedent during the nine-day interval between his injury and his death. In concluding that the cause of action for pain and suffering and lost wages does not abate if the injured person subsequently died as the result of the same tortious act which caused him injury, the court reasoned:

“There may be a substantial loss of earnings, medical expenses, prolonged pain and suffering, as well as property damages sustained, before an injured person may succumb to his injuries. To say that there can be recovery only for his wrongful death is to provide an obviously inadequate justice. Too, the result in such a case is that the wrongdoer will have to answer for only a portion of the damages he caused. Incongruously, if the injury caused is so severe that death results, the wrongdoer’s liability for the damages before death will be extinguished. It is obvious that in order to have a full liability and a full recovery there must be an action allowed for damages up to the time of death, as well as thereafter.” (Emphasis added.) Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 431.

This court’s decision in Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, does nothing to abate the defendant’s statutory liability for punitive damages upon the death of the injured person. In Matty asovszky, where the decedent died instantly, his estate sought to recover punitive damages which the decedent, under the common law, might have recovered had he survived. The court summarily denied recovery of punitive damages because the Survival Act itself has “never been thought to authorize the award of punitive damages.” (Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 33.) The court, however, did not base its denial of common law punitive damages on the broad proposition that punitive damages are unrecoverable when injury results in death. The court held that the imposition of punitive damages was improper in light of the fact that the party whose conduct was primarily responsible for the injury had been dismissed from the action.

Here, in contrast to Mattyasovszky, punitive recovery was sought, not under the common law, but directly under the Public Utilities Act, which expressly provides that “if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by way of punishment.” (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77.) The Survival Act itself neither authorizes nor prohibits punitive damages. It is merely the vehicle by which the cause of action, created by the Public Utilities Act, survives the death of the injured person when the action would otherwise have abated at common law. Unquestionably, the Public Utilities Act intends to punish an offender and discourage similar offenses by allowing punitive damages to be awarded whenever an injury results from a defendant’s wrongful and wilful statutory violation. It would pervert the Act’s intention if reprehensible conduct, so severe in consequence that resultant injury, culminating in death, was to be insulated from punitive liability under the very act designed to vigilantly promote safety by public utilities. Punitive damages for injuries prior to death should be unaffected by the subsequent death of the injured person, for punitive recovery addresses only the nature and gravity of a defendant’s wrongful and wilful act. Under the Act, defendant’s punitive liability accrued from the moment decedent sustained personal injury and, upon decedent’s death, his right to recovery passed unabated to his estate. Only in this manner can we observe the dictates of Murphy and provide for “a full liability and a full recovery *** for damages up to the time of death” (56 Ill. 2d 423, 431).

In answer to one of the special interrogatories, the jury specifically found that the defendant wilfully and knowingly violated Rule 205 of General Order 138 of the Illinois Commerce Commission. The rule provides:

“Every railroad shall keep its right of way reasonably clear of bush, shrubbery, trees, weeds, crops, and other unnecessary obstructions for a distance of at least 500 feet each way from every grade crossing where such things materially would obscure the view of approaching trains to travelers on the highway.” (Emphasis added.)

Defendant contends that the trees, shrubbery and house which obstructed the railroad crossing in this case were not on its right-of-way and that it, therefore, bore no duty to clear the obstructions.

The evidence introduced in the trial court indicated the following. The railroad crossing consisted of two sets of tracks. The set of tracks to the west was leased by Penn Central and the set of tracks to the east was leased by Norfolk & Western Railway Company from the Wabash Railroad Company. The railroads’ right-of-way extended for 120 feet: the Penn Central right-of-way was 65.55 feet wide, and defendant’s right-of-way stretched the remaining 54.45 feet. Trees and shrubbery in the backyard of the house immediately to the east of a fence and 3 feet 10 inches of the house itself were all within the defendant’s 54.45 foot right-of-way. A deed to the property, dated November 13, 1923, indicated no encumbrance of any kind. Defendant never used any of the property to the east of the fence, nor had it ever expressed any claim to this portion of its right-of-way.

In an answer to an interrogatory, defendant admitted that its right-of-way at the crossing measured 54.45 feet wide. It asserts, however, that no evidence established that its right-of-way was 54.45 feet wide immediately north of the crossing at the point of the obstructions. We disagree. A station map, dated June 30, 1919, admitted into evidence, showed that the eastern boundary of the right-of-way proceeds parallel to the tracks and does not narrow to the north of the crossing. The map further revealed that the fence was clearly within defendant’s right-of-way. Admitted into evidence, too, was a plan and profile drawing prepared by Norfolk & Western in April of 1970. Its representations corresponded exactly to those of the 1919 station map and showed the fence, shrubbery, trees and part of the house to be on defendant’s right-of-way. From these exhibits it is clear that from 1919 to 1970 the right-of-way was unchanged, that its width north of the crossing was the same as the width at the crossing, and that the obstructions were, indeed, on defendant’s right-of-way.

The fact that defendant made no claim to its right-of-way against the owner of the property is of no consequence. Defendant does not abandon its right-of-way by mere nonuse. (Golconda Northern Ry. v. Gulf Lines Connecting R.R. (1914), 265 Ill. 194, 206.) Moreover, as a public franchisee, defendant cannot dispose of its right-of-way without the consent and approval of the Illinois Commerce Commission. Any attempt to do so is void. (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 27.) The record affords no evidence of the lawful abandonment of the defendant’s right-of-way. Accordingly, we hold that there was sufficient evidence for the jury to find that the obstructions were on defendant’s right-of-way and that its failure to keep its right-of-way reasonably clear violated Rule 205.

The jury, in response to defendant’s special interrogatory, found that defendant’s violation was wilful. Defendant does not here contest that finding. Instead, it repeats the same argument of nonownership of the right-of-way upon which the obstructions are located and states “the only factual basis on which the punitive damage award can stand is if the [defendant] wilfully failed to keep [its] right-of-way free from obstructions for a distance of 500 feet from the crossing.” (Emphasis by defendant.) Inasmuch as the evidence showed and the jury correctly found that the obstructions were on defendant’s right-of-way and that those obstructions were closer than 500 feet from the crossing, we conclude that the award of punitive damages under section 73 of the Public Utilities Act was proper.

We also find that the jury award of $300,000 punitive damages was not excessive under the circumstances in this case. The Public Utilities Act expressly authorizes punitive damages to punish the tortious public utility for wilfully perpetuating a danger to the traveling public. The evidence indicated that the volume of traffic traversing the railroad crossing was high and that, in 1967, the city of Blooming-ton widened and paved the road intersecting the crossing to accomodate the burgeoning traffic. Moreover, three accidents, each similar in circumstance to the instant accident, occurred at the crossing between 1967 and 1970. Nevertheless, the defendant made no effort to clear the obstructions or to take steps to ensure the safety of the traveling public.

For the reasons stated, the judgment of the appellate court is affirmed. The cause is remanded to the circuit court of McLean County with directions to enter judgment upon the verdicts of the jury.

Affirmed and remanded, with directions.