Ill. Pattern Jury Instr. (Civil) 73.00

INTRODUCTION

The instructions in this section are unchanged even though there have been extensive

changes and developments in the law which have had a profound impact upon the trial of railroad

crossing cases.

In 1971 when IPI 2d was published, Illinois was a contributory negligence state and many

railroad crossing cases failed because the plaintiff was found to be contributorily negligent as a

matter of law. Greenwald v. Baltimore & O. R. Co., 332 Ill. 627, 631- 632; 164 N.E. 142,

143-144 (1928); Tucker v. New York, C. & St. L. R. Co., 12 Ill.2d 532, 147 N.E.2d 376 (1957);

Moudy v. New York, C. & St. L. R. Co., 385 Ill. 446, 53 N.E.2d 406 (1944).

However, in 1981, the Illinois Supreme Court embraced comparative negligence in its

pure form. Alvis v. Ribar, 85 Ill.2d 1, 421 N.E.2d 886, 52 Ill.Dec. 23 (1981). Thereafter, a claim

for damages for injury or death as the result of a collision at a railroa d crossing could and did

succeed even though the plaintiff was found to have been partly at fault. This rule (pure

comparative negligence) was subsequently changed by the legislature affecting causes of action

accruing on or after November 25, 1986, and now a claim is barred if the injured party's (or

decedent's) fault was more than 50%. 735 ILCS 5/2-1107.1 (1994).

The adoption of comparative negligence, however, does not necessarily alter preexisting

duty rules. For example, the doctrine does not change the rule that, ordinarily, a train stopped at a

crossing is itself adequate notice of its own presence, and therefore the railroad has no duty to

provide additional warnings unless the plaintiff can show “special circumstances.” Dunn v.

Baltimore & O. R.R. Co., 127 Ill.2d 350, 537 N.E.2d 738, 741- 743; 130 Ill.Dec. 409, 412-414

(1989) (no special circumstances shown).

There have been other changes which have affected trials and the results of trials which,

while not as far reaching as the abandonment of contributory negligence as a total bar to a

recovery, have had an impact upon railroad litigation.

At the time that these instructions were originally formulated, Ill. Rev. Stat. ch. 111 2/3,

&p;77, provided for the imposition of punitive damages for wilful violations of the Public

Utilities Act. Section 73 of that act provided:

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, m atter

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.

In Churchill v. Norfolk & W. Ry. Co., 73 Ill.2d 127, 383 N.E.2d 929, 23 Ill.Dec. 58

(1978), the Illinois Supreme Court held that this act provided a remedy for personal injuries

sustained as a result of the violation of ICC rules. That remedy was also available to persons who

had sustained financial injury from death caused by a wilful violation of the Public Utilities Act.

The Public Utilities Act was amended effective October 1, 1985, to exclude railroads, but

the remedy remains available for any claims resulting from injuries sustained prior to that date.

A change has been made with respect to the manner in which culpab le conduct on the

part of the railroad could be established. At the time that these instructions were published in IPI

2d, it was proper to prove that a crossing was very inadequately protected. Merchants Nat. Bank

v. Elgin J. & E. Ry. Co., 121 Ill.App.2d 445, 257 N.E.2d 216 (2d Dist.1970), aff'd, 49 Ill.2d 118,

273 N.E.2d 809 (1971).

That proof may now no longer be available in some cases. 625 ILCS 5/18c -7401(3)

(1994), provides that “[l]uminous flashing signal or crossing gate devices installed at grade

crossings, which have been approved by the Commission, shall be deemed adequate and

appropriate.”

In Hunter v. Chicago & N.W. Transp. Co., 200 Ill.App.3d 458, 558 N.E.2d 216, 146

Ill.Dec. 253 (1st Dist.1990), the appellate court (in dictum) concluded that:

[T]he legislative intent was that the issue of the adequacy of the warning devices at a

crossing, once ordered by the Commission, would no longer be an issue in this type of

litigation. Once the Commission has investigated and ordered the installation of a

particular kind of warning device, its decision is conclusive, and the railroad is precluded

from installing any other signal. 82nd Il l.Gen.Assem., House Proceedings, April 22,

1982, at 114-23.

Id. at 465-466, 558 N.E.2d at 221, 146 Ill.Dec. at 258. However, if the Commission has not acted

pursuant to the statute, the plaintiff arguably can still claim that the crossing was not adequate ly

protected.

625 ILCS 5/18c-7401(3) (1994), establishes the duty of a railroad to sound a bell, whistle

or horn. Other safety requirements, in addition to those stated in 625 ILCS 5/18c -7401 to

18c-7404 (1994), are now contained in title 92 of the Illinois Administrative Code, which

supersedes and rescinds General Order 176 of the Illinois Commerce Commission, and

supersedes and rescinds General Order 121 of the Illinois Commerce Commission to the extent

that General Order 121 applies to railroads.