Petition — Toledo, Peoria & Western Railroad v. Burlington Northern, Inc.
Supreme Court brief1979
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AUG 29 979
Ue
| MioH apy RODAK, JR, CLERK
In THE
Supreme Court of the United States
Oocrosrer TERM, 1979
No% 9-33]
TOLEDO, PEORIA & WESTERN RAILROAD,
Petitioner,
vs.
BURLINGTON NORTHERN INC.,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE APPELLATE
COURT OF ILLINOIS, THIRD DISTRICT
LORD, BISSELL & BROOK
115 South LaSalle Street
Chicago, Illinois 60603
CASSIDY, CASSIDY, MUELLER & PRICE
800 Lehmann Building
Peoria, Illinois 61602
Attorneys for Petitioner,
Toledo, Peoria & Western Railroad
CORNELIUS P. CALLAHAN
HUGH C. GRIFFIN
ROBERT P. SCHMIDT
Of Counsel.
Midwest Law Printing Co., Chicago 60601, Financial 6-3988
TABLE OF CONTENTS
INTRODUCTORY STATEMENT
OPINION BELOW
i eceisenieheneincnccvssepmrsneceenscees
QUESTIONS PRESENTED
APPLICABLE CONSTITUTIONAL PROVISIONS ..
STATEMENT OF THE CASE
HOW THE FEDERAL QUESTIONS WERE PRE-
SENTED =
REASONS FOR GRANTING THE WRIT:
I
The Dlinois Appellate And Supreme Courts Vio-
lated Petitioner’s Constitutional Right To Due
Process Of Law
A. The Evidence Supported The Jury’s Verdict
On The Issue Of Whether Defendant’s Acts
And Omissions During The 1969 Rebuilding
Of Car CB&Q 182544 Constituted A Failure
To Exercise Ordinary Care
B. The Evidence Supported The Jury’s Finding
That Car CB&Q 182544 Was Defective And
Unreasonably Dangerous
€. The Issue Of Assumption Of The Risk Was
For The Jury To Decide
12
15
ii
D. None Of The Authorities Cited By The Thli-
nois Appellate Court Justify Its Rejection Of
The JUry’s VeTGicte ..........-...--..ecerssosssscsossonnece 17
E. The Actions Of The Illinois Appellate And
Supreme Courts Violated Petitioner’s Due
Pree TRAC usecase esencnscca case ssnescsovcensenceneocent 19
IT.
The Appellate Court’s Opinion Deprives Plain-
tiff Of Its Constitutional Right To Equal Protec-
I, GI ccasnscsictitntctnionevunjnsinencnincennnvioniecenincnreveiniesasecs 23
CIN ncccccscttcectnnierttdnecttenecesensninnnenesatcinnnanansimsinnsinn 27
APPENDIX:
Oe Oe I Bo ceeteinterecrecettseasinnscniisiniervnncsennecicn la
Verdict as to Count IT . Fa dniadanaessaekcibcounds 2a
Special Interrogatory as to Count I ........................ 3a
Special Interrogatory as to Count II ...................... 4a
2. Opinion of the Appellate Court of Illinois ............ 5a
3. Illinois Supreme Court Rule 317 ......................-.-.-- 15a
4. Petition for Appeal as a Matter of Right or, in
the Alternative, Petition for Leave to Appeal ...... 16a
Illinois Supreme Court Denial of Petition for
Leave to Appeal itbiccladnnateibuiianenses 50a
Motion for Ruling on Petition for Appeal as a
Matter of Right
Illinois Supreme Court Denial of Motion for
IIE coccievncninccncinrcccthcitintaniesnibbaniacensitsinanitisnissaduianieveananians 53a
re eee yy er
iii
LIST OF AUTHORITIES CITED
Cases
Anderson v. Hyster Co., 74 Tll.2d 364 oo... 12, 13
Barrett v. Fritz, 42 T1l.2d 529 (1969) o.oo cece 15
Boddie v. Connecticut, 401 U.S. 371 (1971) 00000... 22
Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673 (1930) .... 21, 22
Chicago, R.I.&P. R.R. v. Chicago and N.W. Ry., 280
F.2d 110 (8th Cir. 1960) .....00........... 26
Christopherson v. Hyster Co., 58 Ill.App.3d 791 (1st
I SON sed ee ees a ots eral ee 16
Crown v. Public Building Commission of Chicago, 74
Ty RSE i ee Mae oe a WR ae LP ei 19
Davis v. Commonwealth Edison Co., 61 Ill.2d 494
Raped nd Bib cert etend it y ARcNe SOER ce ed 27
Doran v. Pullman Standard Car Mfg. Co., 45 Ill.App.
3d 981 (ist Dist. 1977) .................. toh 16, 17
Duncan v. Louisiana, 391 U.S. 145 (1968) pe AMER Sed 20, 21
Galluccio v. Hertz Corp., 1 Ill.App.3d 272 (5th Dist.
a SEIS R NAG RETR an ee ANNI h ETRE Tce OM 19
Gelsurnino v. E. W. Bliss Co., 10 Ill.App.3d 604 (1st
I I ceellletet ealiiatnceti ta eee ar 12, 14
Gillespie v. R. D. Werner Co., Inc., 71 Ill.2d 318 (1978) 14
Jardine v. Arthur Rubloff, 73 T1l.2d 31 (1978) .............. 8, 21
Karabatsos v. Spivey Co., 49 Ill.App.3d 317 (1st Dist.
1977) Bessa TOE ARLE O TSUN Ea E/E ENC OR 16
Knapp v. Hertz Corp., 59 Ill.App.3d 241 (1st Dist.
I wouter re 8 19
Liberty Mutual Insur. Co. v. Williams Machine and
ps OG SB a , | ee 24
Maine C. RR. v. Bangor & A. R.R., ...... Me. ...... , 395
SI a a 26
Missouri Pacific v. Southern Pacific, 430 S.W.2d 900
oe SR RAG atid re PU ee 27
Neal v. Whirl Air Flow Corp., 43 Ill.App.3d 266 (3d
TD ciate aastaisbbiicesecceciesotncetecasabicnesadectaesaabicdicasiaeds 12, 14
Pedrick v. Peoria & Eastern R.R. Co., 37 Tll.2d 494
I sata Uacseleies ci chiaeahnaica leech uinthahaadinon ae 8, 9, 10, 12, 21
Rivera v. Rockford Machine & Tool Co., 1 Ill.App.3d
ee | | ... 12, 14
iv
Robinson v. Ariyoshi, 441 F.Supp. 559 (D. Hawaii,
GOTT) cceenssncinnissiccniniteniesiicipeienliceitinmatdaiaiaiiaae ist ami
Rucker v. Norfolk & W. Ry., 64 Tll.App.3d 770, 381 N.E.
28 T15 (BG Tah, BOD entities etienaienae 13
Scott v. Dreis & Krump Mfg. Co., 26 Ill. App.3d 971 (1st
pe, een IR SS TE 12, 14, 16, 17
Shelley v. Kraemer, 334 U.S. 1 (1948) ..000... 22
Southern Cotton Oil Co. v. Atlantic C.L.R.R., 17 F.2d
see Ri 5 es eee 25, 26
St. Louis S.F. R.R. v. Armco Steel Corp., 490 F.2d 367
(Le. | RRR RS Aa APE Ts ok ES 18
Suvada v. White Motor Co., 32 I11.2d 612 (1965) ........ 23, 24
Tennant v. Peoria & P.U. Ry., 321 U.S. 29 (1944) ........
‘caatadein mn 8, 9, 15, 19, 20, 28
Texaco v. McGrew Lumber Co., 117 Ill.App.2d 351 (1st
Wah, BOD) nceccessvinrnssntnnpsnnseiertnteinsiiiiesiaiiahdilaeiieiienaaammnaiaiiaa 24
Torres v. Southern Pacific Transportation Co., 584 F.
2d 900 (9th Cir. 1978) 18
Tweedy v. Wright Ford Sales, Inc., 64 Ill.2d 570 (1976) 14
Watts v. Bacon & Van Buskirk Glass Co., 18 Tl.2d 226
(1959) . i 17
Wells v. Webb Machinery Co., 29 Ill.App.3d 545 (1st
Dist. 1974) .. 12, 14
Williams v. Brown Mfg. Co., 45 Tll.2d 418 (1970) ...... 15, 16
Constitutional Provisions
U.S. Comat. Amel, WE ecaiecscitiississctcstiinitniasscdicsltuptiadiamtaisersaas 8, 20
U.S. Const. Amend. XTV, § 1 4, 9, 23
TR. Comat, Ast. &, 9 DB ccnnccernatinnses 23
Til. Const. Art. I, § 13 4, 8,19
Other Authorities
Interstate Commerce Act, 49 USC §$§ 10101, e¢ seq.,
11101, 11705, 11901 16
28 USC § 1257(3) 2
Illinois Supreme Court Rule 317 2,7
Restatement, Torts 2d § 402A, Comment g 14
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In Tue
Supreme Court of the United States
Ocroser TrRm, 1979
No.
TOLEDO, PEORIA & WESTERN RAILROAD,
Petitioner,
vs.
BURLINGTON NORTHERN INC.,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE APPELLATE
COURT OF ILLINOIS, THIRD DISTRICT
INTRODUCTORY STATEMENT
Toledo, Peoria & Western Railroad petitions this Court
for a writ of certiorari to review the judgment and opin-
ion of the Appellate Court of Illinois, Third Judicial
District. In the alternative, Petitioner petitions this
Court to direct the Illinois Supreme Court to hear
Petitioner’s Appeal as a Matter of Right.
= a
OPINION BELOW
The opinion of the Appellate Court of Illinois, Third
Judicial District is reported at 67 Ill.App.3d 928 and at
385 N.E.2d 937 (1979) and is appended hereto at pages
5a to 14a. Pursuant to Illinois Supreme Court Rule 317
(App. 3), Petitioner filed a Petition for Appeal as a
Matter of Right or in the Alternative, Petition for Leave
to Appeal in the Supreme Court of Illinois. (App. 4). The
Supreme Court of Illinois issued an order denying the
Petition for Leave to Appeal. (App. 5). Thereafter,
Petitioner filed a motion requesting the Illinois Supreme
Court to rule on the Petition for Appeal as a Matter of
Right. (App. 6). The Illinois Supreme Court denied the
motion for a ruling. (App. 7).
JURISDICTION
The judgment of The Appellate Court of Illinois,
Third Judicial District, was entered on February 14,
1979. Petitioner’s timely Petition for Leave to Appeal
was denied by the Supreme Court of Illinois on May 31,
1979. The Supreme Court of Illinois, by order dated
June 27, 1979, refused to rule on Petitioner’s Petition for
Appeal as a Matter of Right. This Petition for Certiorari
was filed within 90 days of the day of the denial of
Petitioner’s Petition for Leave to Appeal. This Court’s
jurisdiction is invoked under 28 U.S.C. § 1257(8).
Cire tf k's >i inde ade Re _
=— =
QUESTIONS PRESENTED
At the conclusion of a trial lasting three weeks, during
which more than 1,600 pages of testimony were
presented and some 220 documentary and photographic
exhibits introduced into evidence, Petitioner received a
jury verdict in its favor on each of two separate causes
of action, set forth in the two counts of its amended
complaint (App. 1, pp. la, 2a). In addition, the jury
answered two special interrogatories in favor of the
plaintiff. (App. 1, pp. 3a, 4a). The Appellate Court found
no error by the trial court in the admission of evidence,
the conduct of the trial, or the instruction of the jury,
but nevertheless reversed summarily, substituting its
own judgment on disputed fact questions for the verdicts
of the jury which heard the evidence. The Illinois
Supreme Court refused to hear Petitioner’s appeal, even
though that Court’s own rules grant said review as a
matter of right. This presents two questions for review:
1. Did the Appellate and Supreme Courts of
Illinois deprive Petitioner of its constitutional right
to due process of law?
2. Did the Appellate and Supreme Courts of
Illinois deprive Petitioner of its constitutional right
to equal protection of the law?
=
APPLICABLE CONSTITUTIONAL PROVISIONS
The constitutional provisions applicable to this case
are contained in Art. 1, § 13 of the Illinois Constitution
and §1 of Amendment XIV of the United States
Constitution as follows:
“The right of trial by jury as heretofore enjoyed
shall remain inviolate. (Ill. Const. Art. 1, § 13)
“Section 1... . nor shall any State deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
(Constitution of the United States, Amendment XIV)
eee
PET EOE IR
_
STATEMENT OF THE CASE
Petitioner, a common carrier railroad, instituted this
action in the Illinois Circuit Court of the Tenth Judicial
Circuit, Peoria County, to recover damages resulting
from the derailment of one of its freight trains in
Crescent City, Illinois, on June 21, 1970. The derailment
and resulting fires had caused damage to the plaintiff's
own property and had caused substantial personal
injury and property damage to the residents of Crescent
City. All third party damage claims had been settled
prior to the time of trial, and therefore, the amount of
the damages was liquidated. The cause of the derail-
ment and resultant damage was a “hot box,” the failure
of a “journal bearing,” which was part of car CB&Q
182544, a railroad car manufactured, rebuilt and owned
by Burlington Northern, Inc., respondent herein. The
complaint was filed against Burlington Northern in two
counts: Count I applied the theory of strict liability in
tort; Count II was in common law negligence.
The trial lasted three weeks, involved some 1,600
pages of testimony and some 220 documentary and
photographic exhibits. At the conclusion of the trial, the
jury was instructed by the court in accordance with
instructions tendered by the defendant on the sub-
stantive issues. At the close of the trial, after delib-
erating approximately seven hours, the jury returned
the following verdicts:
“We, the jury, find for the plaintiff and against
the defendant as to Count I of the Complaint. We
assess the damages in the sum of $1,787,491.05.”
“We, the jury, find for the plaintiff and against
the defendant as to Count II of the Complaint. We
assess the damages in the sum of $1,787,491.05.”
—~—
In answer to two special interrogatories tendered by the
defendant, the jury found that plaintiff was not
contributorily negligent and that the defendant did
rebuild the railroad car in question in February of 1969,
sixteen months before the accident. (The verdicts and
special interrogatories are set out at Appendix 1, pages
la to 4a).
After polling of the jury, the trial court entered
judgment in favor of plaintiff in the amount of
$1,787,491.05 on the jury’s verdicts and special findings.
Defendant’s post-trial motions were denied.
Defendant appealed to the Appellate Court of Illinois
for the Third Judicial District, and on February 14,
1979, that court issued an opinion reversing the
$1,787,491.05 judgment entered in favor of plaintiff on
the verdicts of the jury. The Appellate Court summarily
set aside the judgment entered in favor of the plaintiff
on the jury verdicts and entered judgment in favor of
defendant. The Appellate Court found no error by the
trial court in the conduct of the trial but nonetheless
issued its opinion holding that:
1. Defendant was not negligent in rebuilding the
car;
2. The car was not defective or unreasonably
dangerous;
3. Plaintiff assumed the risk of the defective car.
Upon receipt of this opinion, plaintiff filed a Petition
for Appeal as a Matter of Right to the Illinois Supreme
Court, pointing out that the action of the Appellate
Court in reversing the verdicts and special findings of
the jury on factual issues deprived Petitioner of its
constitutional right to trial by jury. Petitioner also
urged that the Appellate Court’s opinion deprives plain-
tiff of its constitutional rights to due process and equal
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protection of the law. Illinois Supreme Court Rule 317
expressly grants a right to appeal to that Court as
follows:
Appeals from the Appellate Court shall lie to the
Supreme Court as a matter of right in cases in
which a question unde: the Constitution of the
United States or of this State arises for the first
time in and as a result of the action of the Appellate
Court. (App. 3, emphasis added)
In the alternative, Petitioner asked for leave to appeal,
pointing out conflicts between this decision of the court
and decisions of other appellate districts in the State on
questions of state common law. The Illinois Supreme
Court, by order dated May 31, 1979, denied the alterna-
tive Petition for Leave to Appeal, but was silent on the
principal petition, the Petition for Appeal as a Matter of
Right. (App. 5). Petitioner moved the Illinois Supreme
Court to rule on its Petition for Appeal as a Matter of
Right. (App. 6). The court denied the motion, refusing to
rule on the Appeal as a Matter of Right. (App. 7).
This Petition for Writ of Certiorari follows.
HOW THE FEDERAL QUESTIONS
WERE PRESENTED
The federal questions herein arose for the first time
by the action of the Appellate Court. These issues were
the subject of the Petitioner’s Petition for Appeal as a
Matter of Right (App. 4) which the Illinois Supreme
Court refused to rule upon. (App. 7).
—s—
REASONS FOR GRANTING THE WRIT
I.
THE ILLINOIS APPELLATE AND SUPREME
COURTS VIOLATED PETITIONER'S CONSTITUTION-
AL RIGHT TO DUE PROCESS OF LAW.
The right to trial by jury has historically been
considered so important that it was made part of the
original Bill of Rights (U.S. Const. Amend. VII). The
Illinois Constitution also recognizes that “the right of
trial by jury as heretofore enjoyed shall remain
inviolate.” (Ill. Const. Art. I, § 13). Despite the fact that
this basic and fundameital right is guaranteed by both
the Federal and State Constitutions, the Appellate Court
of Illinois, Third Judicial District, denied that right to
Petitioner by sweeping aside two jury verdicts and the
special findings consistent therewith and substituting its
view of the evidence instead. In doing so, as Petitioner
will demonstrate in detail, infra, the Illinois Appellate
Court refused to follow the standard enunciated by this
Court in Tennant v. Peoria & P.U. Ry., 321 U.S. 29
(1944) and the standards for judicial review established
by the Illinois Supreme Court in Pedrick v. Peoria &
Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967) and
reaffirmed by Jardine v. Arthur Rubloff, 73 Ill. 2d 31, 36
(1978), as follows:
In our judgment verdicts ought to be directed and
judgments n.o.v. entered only in those cases in
which all of the evidence, when viewed in its aspect
most favorable to the opponent, so overwhelmingly
favors movant that no contrary verdict based on
that evidence could ever stand. 37 Ill. 2d at 510.
Ignoring this Court’s admonitions that “courts are not
free to reweigh the evidence,” (Tennant v. Peoria & P.U.
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Ry., supra) the Appellate Court of Illinois substituted its
judgment for that of the jury on three disputed factual
issues, finding for the defendant in each case. In so
doing, it clearly violated Petitioner’s right to due process
of law as guaranteed by Amendment XIV of the United
States Constitution.
A. The Evidence Supported The Jury’s Verdict On The
Issue Of Whether Defendant’s Acts And Omissions
During The 1969 Rebuilding Of Car CB&Q 182544
Constituted A Failure To Exercise Ordinary Care.
Plaintiff's negligence case was based on evidence
which “when viewed in its aspect most favorable” to
plaintiff, Pedrick v. Peoria & Eastern R.R. Co., supra,
established the following:
1) In 1969 Burlington brought car CB&Q
182544 into its Havelock, Nebraska, shop for
“rebuilding” (A. 407);*
2) In 1969, and for years prior thereto, journal
roller bearings were available which greatly reduc-
ed the possibility of a journal bearing failure on
freight cars and, by the mid-1960’s, the entire
railroad industry was in the process of converting
plain bearing cars to the safer roller bearings (A.
301, 440);
3) Prior to 1969 the AAR (Association of
American Railroads) had required that roller
bearings be installed exclusively on all new cars
built after August 1, 1968 (BE 41) (A. 403);
4) For at least 10 years prior to 1969,
Burlington itself had installed roller bearings ex-
clusively on all new freight cars manufactured at
its Havelock shops (A. 408);
5) In 1969 Burlington had at its Havelock shop
all the equipment necessary to convert to roller
* These references are to the Abstract of Record and Book of
Exhibits of the trial.
bearings and subsequently made roller bearing con-
versions on some of its older freight cars (A. 375,
385, 632);
6) Roller bearing conversion of the car would
have been even easier than usual since it was
already dismantled and the trucks containing the
bearings had been completely removed and dis-
assembled (A. 385);
7) Burlington’s own assistant shop superinten-
dent suggested to his superintendent that roller
bearings be installed on the car (A. 375, 530);
8) Nevertheless, Burlington saved the cost of
conversion and installed obsolete plain bearings on
the rebuilt car, thereby exposing the public, in-
cluding other railroads, to the greater hazards (A.
480);
9) Plaintiff was free from contributory negli-
gence (App. 1, p. 4a);
10) The accident occurred when one of the ob-
solete plain bearings failed in normal service (A.
457); and
11) The failure to equip the car with roller
bearings was a proximate cause of the accident (A.
480).
The Illinois Appellate Court brushed all this evidence
aside with a single paragraph:
“The jury also returned a verdict for plaintiff un-
der Count II which alleged defendant’s negligence
in rebuilding the hopper car in an unreasonably
dangerous and defective condition. As our previous
discussion of the evidence indicates, there was no
basis for a finding of negligence since the bearing
was not physically defective and the design was not
unreasonably dangerous but was customarily used
within the industry. The fact that some other design
might conceivably be safer is not proof of
negligence. (Watts v. Bacon & Van Buskirk Glass
Co. (1959), 18 Ill.2d 182, 163 N.E.2d 425.) Therefore
we hold that, as a matter of law, defendant was not
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negligent, and the judgment must be reversed.”
(App. 2, p. 13a)
This paragraph does not correctly state the law of II-
linois or any other American jurisdiction, and violates
the basic principles of judicial review. “Negligence” was
defined to the jury as follows:
“When I use the word “negligence” in these in-
structions, I mean the failure to do something
which a reasonably careful person weuld do or the
doing of something which a reasonably careful per-
son would not do, under circumstances similar to
those shown by the evidence. The law does not say
how a reasonably careful person would act under
those circumstances. That is for you to decide.” Plf’s
Inst. No. 11, A. 152-158, Deft’s Inst. No. 34, A. 171,
Emphasis added.
Yet, despite the standard Illinois Pattern Jury instruc-
tion (I.P.I. 2d § 10.01), tendered by both parties, the II-
linois Appellate Court took away from this jury its con-
stitutionally protected role as trier of this fact issue.
The issue framed for the jury was clear—Was the
defendant’s conduct in rebuilding car CB&Q 182544
with obsolete plain bearings in 1969 when a practical
and much safer alternative was not only readily
available but recommended by the entire industry
“something which a reasonably careful person would
do?” (I.P.1.2d § 10.01, Plf’s Inst. No. 11, A. 152-153,
Deft’s Inst. No. 34, A. 171).
The jury’s verdict in favor of plaintiff on the
negligence count of the complaint answered that ques-
tion and that answer was fully supported by the
evidence. The Illinois Appellate Court had no right to
overrule the jury’s finding in this regard, and by so do-
ing it has denied Petitioner its constitutional right to
due process of law.
=o
B. The Evidence Supported The Jury’s Finding That
Car CB&Q 182544 Was Defective And Unreasonably
Dangerous.
Without citing Pedrick v. Peoria & Eastern R.R. Co.,
supra, applying the Pedrick test, discussing plaintiff's
evidence or analyzing the issue, the Illinois Appellate
Court stated: “The design of Car CB&Q 182544 did not
create a condition that was unreasonably dangerous to
plaintiff.” (App. 2, p. 12a) Contrary to this statement,
the evidence “viewed to its aspect most favorable to the
plaintiff” established that Burlington’s installation of
failure-prone plain bearings on car CB&Q 182544 in
February of 1969—when safer roller bearings had long
since been available and recommended throughout the
industry, when Burlington for the preceding 10 years
had put roller bearings on all its newly manufactured
cars—created an unreasonably dangerous condition
which brought about the instant occurrence, and the
jury expressly so found by their separate verdict in
favor of plaintiff on the strict liability count of the com-
plaint.
The availability and feasibility of an alternative device
or design which, more likely than not, would have
prevented the occurrence is the essence of proof in any
strict liability design case under Illinois law. Wells v.
Webb Machinery Co., 20 Ill.App.3d 545 (1st Dist. 1974);
Rivera v. Rockford Machine & Tool Co., 1 Ill.App.3d 641
(Ist Dist. 1971); Gelsumino v. E. W. Bliss Co., 10 Iil.
App.3d 604 (1st Dist. 1973); Neil v. Whirl Air Flow Co.
Corp., 43 Ill.App.3d 266 (8rd Dist. 1976); Scott v. Dreis
& Krump Mfg. Co., 26 Ill.App.3d 971 (1st Dist. 1976).
In the recent case of Anderson v. Hyster Co., 74 IIl.2d
364, the Illinois Supreme Court affirmed a strict liabili-
ty verdict for defective design against a forklift
manufacturer, noting at 368:
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“That a product was not reasonably safe by
reason of defective design may be proved, inter
alia, by evidence of the availability and feasibility
of alternate designs at the time of its manufacture,
or that the design used did not conform with the
design standards of the industry, design guidelines
provided by an authoritative voluntary association,
or design criteria set by legislation or governmental
regulation.”
Similarly, in the case at bar, plaintiffs’ evidence show-
ed inter alia that the alternative design (roller bearings)
was both feasible and available at the time and place
that car CB&Q 182544 was rebuilt and that roller
bearings had long since been the “standard” of the in-
dustry. The fact that in 1969 no rule or law actually re-
quired roller bearings on 70-ton hopper cars was s?raply
an element for the jury to consider. Indeed, in another
recent Illinois decision, Rucker v. Norfolk & W. Ry., 64
Ill.App.3d 770, 381 N.E.2d 715 (5th Dist. 1978), the Il-
linois Appellate Court upheld a strict liability verdict
for defective design against a tank car manufacturer for
failure to install a protective shield at the head of the
car even though such “headshields” were not required
by any rule or law and were not at all widely used in the
industry.
Here, the evidence showed that the use of an alter-
native design (roller bearings) would significantly
reduce hot box occurrences from all causes, and the
evidence was certainly sufficient for the jury to find that
the instant derailment would never have occurred if
roller bearings had been on the car as Plaintiff's expert
expressly testified (A. 480). Illinois courts have re-
peatedly held that a manufacturer’s failure to use an
alternative design or an available safety feature on its
product presents at least a question of fact for the jury
on
under the strict liability theory. See Gelsumino v. E. W.
Bliss Co., 10 Ill.App.3d 604 (1st Dist. 1974); Neal v.
Whirl Air Flow Corp., 43 Ill.App.3d 266 (3d Dist. 1976);
Scott v. Dreis & Krump Mfg. Co., 26 Ill.App.3d 971 (1st
Dist. 1975); Rivera v. Rockford Machine & Tool Co.,
supra, 1 Ill.App.38d 641 (1st Dist. 1971); Wells v. Webb
Machinery Co., supra, 29 Ill.App.3d 545 (1st Dist. 1974).
Furthermore, under the Illinois Supreme Court’s
holding in Tweedy v. Wright Ford Sales, Inc., 64 IIl.2d
570 (1976), a prima facie strict liability case is establish-
ed by proving the failure of the product to perform “in
the manner reasonably to be expected in light of its
nature and intended function” (64 IIIl.2d at 574). See
also, Gillespie v. R. D. Werner Co., Inc., supra, 71 I1].2d
318 (1978), reaffirming the Tweedy rationale. Moreover,
a defective condition is a “condition not contemplated by
the ultimate consumer which will be unreasonably
dangerous to him.” Restatement, Torts 2d § 402A, Com-
ment g. Burlington’s own witness established that new
plain bearings ought to last 1.5 million miles (A. 594).
Instead, four out of the eight bearings on car CB&Q
182544 failed in the first 16,000 miles of use, and the
last failure caused the catastrophic derailment at Cres-
cent City. There is no way it can fairly be said that, as a
matter of law, a condition where 50% of the bearings fail
within 1% of their expected life was a condition
“contemplated” by plaintiff, and the Appellate Court’s
reliance on Restatement, Torts 2d § 402A, comment g,
(App. 2, pp. 9a-10a) in reversing the jury verdict as to
Count I is misplaced.
In view of this mass of evidence, for the Illinois
Appellate Court to hold that “the design of car CB&Q
182544 did not create a condition that was unreasonably
dangerous to plaintiff” (App. 2, p. 12a) clearly placed
the court in the jury box and made it the trier of fact.
—1§—
C. The Issue Of Assumption Of The Risk Was For The
Jury To Decide.
The issue of assumption of the risk, raised as an affir-
mative defense to the strict liability count only,* again
manifests the Illinois Appellate Court’s refusal to follow
the proper standard for judicial review. The Illinois
Appellate Court stated:
“At trial there was ample evidence that plaintiff
knew full well the risks and dangers of transport-
ing freight cars equipped with solid bearings . . .”
(App. 2, p. 10a)
But, “ample evidence” does not satisfy the proper stan-
dard for overruling a jury finding. In a strict liability
case, assumption of the risk is an affirmative defense to
be pleaded and proved by defendant. Williams v. Brown
Mfg., 45 Ill.2d 418 (1970). By its verdict in favor of
plaintiff on Count I, the jury found that the defense had
not been proved. The Illinois Appellate Court was not
free to overturn this verdict simply because in its view
there was “ample evidence” to support its view of the
evidence rather than the jury’s. Tennant, supra, 329
U.S. 9.
Moreover, while the evidence arguably established
that plaintiff knew the car was equipped with plain
bearings, the evidence certainly did not establish that
plaintiff knew that the car had been completely dis-
mantled and rebuilt in 1969 at facilities equipped to
make roller bearing conversions, nor did it establish
that plaintiff knew that this particular car had suffered
failures in three out of eight plain bearings in its first
16,000 miles of use after being returned to service in
* Assumption of the risk is not a defense to a ne og ac-
tion in Illinois, Barrett v. Fritz, 42 Ill.2d 529 (1969), and
defendant did not plead or argue the issue with respect to the
negligence count of the complaint (A. 24-26, 167).
wabitine
1969. In Karabatsos v. Spivey Co., 49 Ill.App.3d 317 (1st
Dist. 1977) and Christopherson v. Hyster Co., 58 Il.
App.3d 791 (lst Dist. 1978), the Court affirmed jury
verdicts in favor of plaintiffs in strict products liability
cases and held as a matter of law that an appreciation of
a general possibility of danger does not constitute
assumption of risk.
Furthermore, it is well settled that assumption of the
risk in a strict liability action is established only if
plaintiff “voluntarily and unreasonably” encounters a
known risk, Williams v. Brown Mfg. Co., 45 Ill.2d 418,
423 (1970); Doran v. Pullman Standard Car Mfg. Co., 45
Ill.App.3d 981 (1st Dist. 1977); Scott v. Dreis & Krump
Mfg. Co., 26 Ill.App.3d 971 (1st Dist. 1975). Although the
Association of American Railroad (“AAR”) interchange
agreement did not obligate Burlington to rebuild plain
bearing cars in 1969, it did obligate the plaintiff to
accept a car which meets the minimum requirements of
these rules. Refusing to accept a car meeting these
minimum requirements would effectively put TP&W out
of the freight hauling business. But TP&W is not even
free to go out of the freight hauling business, for to do so
would violate the Interstate Commerce Act, 49 USC
§§ 10101, et seg., 11101. Violation of the statute can sub-
ject the carrier to suit for damages, including attorney’s
fees, 49 USC § 11705, and for civil penalties, 49 USC
§ 11901.
A common carrier railroad can hardly be said to be
“unreasonable” in discharging its duty to furnish
transportation under Federal law. If a railroad is forced
to accept a car which meets certain minimum rules and
requirements, having no standing to participate in the
decision-making process whereby the rules are drafted
because it is not a voting member of the organization
=
promulgating the rules (see discussion infra) it cannot
be said as a matter of law to be “voluntary and un-
reasonably” encountering a known risk. See Doran v.
Pullman Standard Mfg. Co., supra, 45 Ill.App.3d 981,
989 and Scott v. Dreis & Krump Mfg. Co., 26 Ill.App.3d
971, 990, both holding that job-compulsory activity did
not constitute assumption of the risk.
At best, the assumption of risk defense, including the
alleged voluntariness and unreasonableness of Plaintiff's
conduct, was for the jury to decide. Even if the Illinois
Appellate Court were correct in finding “ample
evidence” that Plaintiff assumed the risk, the jury’s ver-
dict to the contrary cannot be disturbed without
violating Petitioner’s due process rights.
D. None Of The Authorities Cited By The Illinois
Appellate Court Justify Its Rejection Of The Jury’s
Verdicts.
The Illinois Appellate Court cites three cases, one on
the negligence issue and two on the issue of strict liabili-
ty.
To support its reversal of the negligence verdict, the
Appellate Court relies on Watts v. Bacon & Van Buskirk
Glass Co., 18 Ill.2d 226 (1959), affirming a directed ver-
dict in favor of a glass manufacturer who had installed
plate glass instead of tempered glass in a drug store
door in accordance with instructions from the owners of
the store. Not only was the glass company simply carry-
ing out a purchase order, but the evidence showed that
“plate glass installation was customary and usual while
the use of tempered glass was exceptional” (18 II].2d at
231). Obviously, the instant case and Watts are wholly
different cases. Here, the only party who ordered or
chose to rebuild car CB&Q 182544 with obsolete plain
=
bearings was the defendant. Conversion to roller
bearings was not exceptional—it was the standard to
which the entire railroad industry was attempting to
comply! Defendant showed not a single other instance
where any railroad in 1969 was still installing plain
bearings on any new or rebuilt cars. On the contrary,
the evidence showed that other railroads were convert-
ing their fleets to roller bearings as fast as was feasible.
Defendant itself had installed roller bearings exclusively
on all its new cars for the preceding 10 years. In short,
the factors establishing the propriety of the directed ver-
dict in Watts establish the propriety of the jury verdict
in the case at bar.
With respect to the strict liability verdict, the
Appellate Court cites St. Louis S.F. R.R. v. Armco Steel
Corp., 490 F.2d 367 (8th Cir. 1974) and Torres v.
Southern Pacific Transportation Co., 584 F.2d 900 (9th
Cir. 1978). Armco Steel was not a design case at all, but
involved a claim that defendant’s wheel contained a
manufacturing defect (excessive pitting). The expert opin-
ion on this point was in conflict, the trial court as fact
finder found in favor of the defendant, and the Court of
Appeals affirmed the trial court’s findings. If anything,
Armco supports the submission of the instant case to the
jury and affirmance of the jury’s verdicts.
Torres involved an action by two trespassing illegal
aliens hitching a ride on defendant’s freight car who
were injured in a hot box derailment. Unlike the case at
bar, there was no evidence that any “unreasonable” con-
duct on the part of the defendant was responsible for the
hot box (the type of bearings involved were not even
identified), and the case was decided under Arizona law
which unlike Illinois does not apply the strict liability
doctrine to the lessor of a defective chattel (584 F.2d at
SRY
_
902). See Crowe v. Public Building Commission of
Chicago, 74 IIl.2d 10; Galluccio v. Hertz Corp., 1 Ill.
App.3d 272 (5th Dist. 1971); Knapp v. Hertz Corp., 59
Ill.App.3d 241 (1st Dist. 1978).
E. The Actions Of The Illinois Appellate And Supreme
Courts Violated Petitioner’s Due Process Rights.
In Illinois, civil litigants are granted a constitutionally
protected right to a jury trial. Ill. Const. Art. 1, § 13.
This right, if it is to have any meaning at all, must in-
clude the right that any appellate review of the results
of the jury trial be limited by appropriate standards
which give the jury verdict its constitutionally protected
weight. If Appellate judges are free to overturn any jury
verdict simply because they disagree with it, the right
has been reduced to a nullity. But here, the decision of
the Illinois Appellate Court has violated the con-
stitutional standards for appellate review of jury ver-
dicts, as set forth by this Court:
“It is the jury, not the court, which is the fact-
finding body. It weighs the contradictory evidence
and inferences, judges the credibility of witnesses,
receives expert instructions, and draws the ultimate
conclusion as to the facts. The very essence of its
function is to select from among conflicting in-
ferences and conclusions that which it considers
most reasonable. Washi & Georgetown R. Co.
v. McDade, 135 U.S. 554, 571, 572; Tiller v. Atlantic
Coast Line R. Co., supra, 68; Bailey v. Central Ver-
mont Ry., 319 U.S. 350, 353, 354. That conclusion,
whether it relates to negligence, causation or any
other factual matter, cannot be ignored. Courts are
not free to reweigh the evidence and set aside the jury
verdict merely because the jury could have drawn
different inferences or conclusions or because judges
feel that other results are more reasonable.
—20—
Upon an examination of the record we cannot say
that- the inference drawn by this jury that
respondent’s negligence caused the fatal accident is
without support in the evidence. Thus to enter a
judgment for the respondent notwithstanding the
verdict is to deprive petitioner of the right to a jury
trial.” (Emphasis added) Tennant v. Peoria & P.U.
Ry., 321 U.S. 29, 35 (1944).
If this case had arisen in the federal court, there is no
doubt that the action of the Appellate Court would be
held to violate the second clause of the Seventh Amend-
ment which provides that “no fact tried by a jury, shall
be otherwise re-examined in any Court of the United
States, than according to the rules of the common law.”
It is anomalous that this Court has never held that the
right to jury trial granted by the Seventh Amendment is
made applicable to the states by reason of the
Fourteenth Amendment, although this Court, in Duncan
v. Louisiana, 391 U.S. 145 (1968), held that the right to
a jury trial contained in the Sixth Amendment so
applied. The Court’s reasoning in Duncan would be
equally applicable here:
The test for determining whether a right extend-
ed by the Fifth and Sixth Amendments with
respect to federal criminal proceedings is also
protected against state action by the Fourteenth
Amendment has been phrased in a variety of wayg,.
in the opinions of this Court. The question has been
asked whether a right is among those “ ‘fundamen-
tal principles of liberty and justice which lie at the
base of all our civil and political institutions,’ ”
Powell v. Alabama, 287 U.S. 45, 67 (1932); whether
it is “basic in our system of jurisprudence,” Jn re
Oliver, 333 U.S. 257, 273 (1948); and whether it is
“a fundamental right, essential to a fair trial,” Gi-
deon v. Wainwright, 372 U.S. 335, 343-344 (1963);
Malloy v. Hogan, 378 U.S. 1, 6 (1964); Pointer v.
Texas, 380 U.S. 400, 403 (1965). The claim before us
ll
is that the right to trial by jury guaranteed by the
Sixth Amendment meets these tests. The position of
Louisiana, on the other hand, is that the Constitu-
tion imposes upon the States no duty to give a jury
trial in any criminal case, regardless of the
seriousness of the crime or the size of the punish-
ment which may be imposed. Because we believe
that trial by jury in criminal cases is fundamental
to the American scheme of justice, we hold that the
Fourteenth Amendment guarantees a right of jury
trial in all criminal cases which—were they to be
tried in a federal court—would come within the
Sixth Amendment’s guarantee. 39 U.S. at 148-149
(emphasis added).
The right to jury trial in civil cases is no less “fun-
damental to the American scheme of justice” than in
criminal cases, and this Court should expressly so hold.
However, this Court need not go so far as to hold that
state civil litigants always and everywhere have the
right to trial by jury, for here the Illinois Constitution
clearly gives Petitioners that right as a part of the fun-
damental law of the State. Moreover, the common law of
Illinois gives litigants the right to judicial review of jury
verdicts guided by constitutionally appropriate stan-
dards. Pedrick v. Peoria & Eastern R.R. Co., supra, 37
Ill.2d 494, 510 (1976); Jardine v. Arthur Rubloff, supra,
73 Ill.2d 31, 36 (1978). The issue presented by this Peti-
tion is whether the Illinois Appellate and Supreme
Courts may violate the Fourteenth Amendment’s federal
guarantee of due process of law by arbitrarily denying
Petitioner its right to standards of appellate review
which are consistent with the right to jury trial to which
Petitioner was clearly entitled.
Denial of federal due process can be accomplished by
a state court, as this Court noted in Brinkerhoff-Faris
Co. v. Hill, 281 U.S. 673 (1930):
= =
The federal guarantee of due process extends to
state action through its judicial as well as through
its legislative, executive or administrative branch of
government. . . . But, while it is for state courts to
determine the adjective as well as the substantive
law of the State, they must in so doing, accord the
parties due process of law.” 281 U.S. at 680-821.
See, also Shelley v. Kraemer, 334 U.S. 1, 15 (1948), and
cases cited therein. Not only criminal defendants, but
civil litigants as well look to the court system for a fair,
orderly and just system for the resolution of their dis-
putes. This Court aptly summarized this principle in
Boddie v. Connecticut, 401 U.S. 371 (1971)
American society, of course, bottoms its
systematic definition of individual rights and
duties, as well as its machinery for dispute settle-
ment, not on custom or the will of strategically
placed individuals, but on the common-law model.
It is to courts, or other quasi-judicial official bodies,
that we ultimately look for the implementation of a
regularized, orderly process of dispute settlement.
Within this framework, those who wrote our
original Constitution, in the Fifth Amendment, and
later those who drafted the Fourteenth Amend-
ment, recognized the centrality of the concent of
due process in the operation of this system. Without
this guarantee that one may not be deprived of his
rights, neither liberty nor property, without due
process of law, the State’s monopoly over techniques
for binding conflict resolution could hardly be said
to be acceptable under our scheme of things. Only
by providing that the social enforcement
mechanism must function strictly within these
bounds can we hope to maintain an ordered society
that is also just. It is upon this premise that this
Court has through years of adjudication put flesh
upon the due process principle. 401 U.S. at 375.
POT
—
Where a state appellate court violates the proper stan-
dard for judicial review of a lower court decision, such
action is a violation of the procedural due process
guarantees of the Fourteenth Amendment to the United
States Constitution. Robinson v. Ariyoshi, 441 F.Supp.
559 (D. Hawaii, 1977). Here, by overturning a jury ver-
dict after reweighing the evidence, contrary to the
proper standard for appellate review, the Illinois
Appellate Court denied Petitioner due process. By refus-
ing even to rule upon Petitioner’s appeal as a matter of
right, contrary to the right expressly granted hy its own
rules, the Illinois Supreme Court further denied Peti-
tioner a fair hearing on its constitutional questions.
II.
THE APPELLATE COURT’S OPINION DEPRIVES
PLAINTIFF OF ITS CONSTITUTIONAL RIGHT TO
EQUAL PROTECTON OF LAW.
The Illinois Appellate Court’s opinion, besides setting
aside two jury verdicts without any basis in law or fact
for doing so, also in essence holds that this railroad,
regardless of its damage, is not entitled to pursue a
remedy and cause of action (strict liability in tort) that
is available to all other plaintiffs in the State of Illinois.
Such a result is in violation of the equal protection
clauses of both the Illinois and U. S. Constitutions. III.
Const. Art. I, § 2; U. S. Const., Amend. XIV.
Certainly the fact that plaintiff is a business entity
and not an individual “member of the general public”
(Appellate Court Opinion, p. 11) does not justify unequal
treatment or deprive it of its strict liability remedy. In-
deed, the posture of this case is not unlike that in
Suvada v. White Motor Co., 32 Ill.2d 612 (1965) where
the Supreme Court of Illinois adopted the strict liability
Eee Te
—24—
doctrine. In Suvada, a milk service company was
allowed to maintain a strict liability in tort indemnity
action against the manufacturer-seller of the milk truck
for amounts paid by the milk company in settlement of
personal injury suits brought by persons injured in a
collision between the milk truck and a bus. In Liberty
Mutual Insur. Co. v. Williams Machine and Tool Co., 62
Ill.2d at 77 (1975), the subrogee insurer of a manu-
facturing corporation, who assembled and sold a de-
fective work platform, settled an injured workman’s
claim and then was allowed to obtain indemnity under
the strict liability doctrine from the company that
manufactured the defective hydraulic pump installed on
the platform. In Texaco v. McGrew Lumber Co., 117 IIl.
App. 2d 351 (1st Dist. 1969), the strict liability doctrine
was expressly applied to two business entities in the same
industry, the court holding that one lumber company in
the distributive chain of a defective plank could obtain
indemnity from another lumber company which origin-
ally supplied the plank (117 Ill. App. 2d at 357-358).
The Appellate Court’s opinion also notes the existence
of the AAR Interchange Agreement governing the
interchange of freight cars between railroads. The
interchange agreement, including the duty of the
handling railroad to inspect cars received in inter-
change, was introduced in evidence and argued to the
jury. Nothing in the AAR agreement, however, even
deals with, much less precludes, one railroad’s right to
recover under the strict liability theory for damage
incurred as a result of an unreasonably dangerous
condition of a freight car leased into service by another
railroad. In fact, Article 17 of the AAR’s plan of organi-
zation expressly provides that:
Article 17. Nothing this plan shall in any way pro-
hibit or restrain any member road from acting in-
i
dividually and independently of the Association or
of any and all other member roads with respect to
any of the matters covered hereby, and the right of
individual and independent action is expressly
reserved to each member road. (Supp. BE 50)
The interchange rules themselves were designed to pro-
vide a means for prompt payment for repairs to and
damage sustained by freight cars. (A. 561-562). Beyond
this point, the rules do not go. These rules do not
attempt to exonerate the car owner from any liability
that may result from a dangerous condition on a freight
car, which results in personal injuries or property
damage sustained by others. These rules do not attempt
to preclude a “Handling Company” (such as TP&W)
from suing a car owner, manufacturer or rebuilder
(such as Burlington) for any losses or damage sustained
by “Handling Company” as a result of a defective con-
dition of a freight car which was caused or contributed
to by the car owner, manufacturer or rebuilder.
Contrary to the instant Illinois Appellate Court deci-
sion, other courts that have considered the AAR inter-
change agreement have interpreted the agreement ac-
cording to its terms and held that it does not preclude
common law actions for damages between railroads
under any theory. For example, in Southern Cotton Oil
Co. v. Atlantic C.L.R.R., 17 F.2d 411 (E.D. Va. 1927) the
court held:
An examination of the rules from beginning to
end shows that the purpose of their adoption was, as
stated in the preface, to make the car owner
chargeable with repairs under certain given cir-
cumstances and the railroad chargeable with re-
pairs under certain other given circumstances, and
to provide a means of securing the repairs and
allocating the cost of same. Elaborate provisions are
contained in the rules with relation to the character
of equipment of the cars and the method of
a a eas
-— =
handling the cars when defects are discovered,
whether loaded or unloaded, and like matters. In
other words, the intent and purpose of the rules is to
provide for the interchange of cars, and in no sense
do they relate to or were they intended to cover the
question of responsibility between the parties in
relation to the contents of the same or to alter or
modify the existing law with relation to such matters.
If, therefore, as the result of a failure to properly
inspect a car in transit on its railroad or to handle
the same with due care, damage ensues, the
railroad company will be liable. If, on the other
hand, loss is sustained by some hidden defect in the
car, undiscoverable in the exercise of due care, the
railroad company will not be responsible. (17 F.2d
411, 4138) (Emphasis added.)
In Chicago, R.I.&P. R.R. v. Chicago and N.W. Ry., 280
F.2d 110 (8th Cir. 1960), the court held the Interchange
Rules did not prevent a railroad in possession of a
freight car from suing another railroad for contribution
towards the settlement of a claim for personal injuries
suffered by an employee of the railroad in possession.
The court concluded that the interchange rules:
“.. . do not operate as a waiver of or a bar to any
claim for indemnity or contribution that the plain-
tiff might have against the defendant arising out of
the mishap.” (280 F.2d 110, 113) (Emphasis added)
Most recently in Maine C. R.R. v. Bangor & A. R.R.,
soins Me. ....., 395 A.2d 1107 (1978), the Maine Supreme
Court reached the same conclusion in an action to con-
firm an arbitrators’ award for damages incurred by the
Maine Central whose train derailed because of a defect
in a Bangor & Aroostook freight car. Both railroads
were parties to the AAR Interchange Agreement at the
time of the occurrence. After holding at 1132 that the
arbitrators “did nothing more than give their
authoritative opinion that initial responsibility for the
damaged cars lay with Maine Central”, the Court went
on to hold that “Maine Central is entitled to pursue its
legal remedies with respect to the alleged products
liability claim.” To the same effect see Missourn Pacific
v. Southern Pacific, 480 S.W.2d 900 (Tex. App. 1968),
holding that one railroad’s contractual duty to inspect a
car did not prevent it from obtaining indemnity for
amounts paid to an injured employee from the railroad
that actually supplied the defective car in which the
employee was injured.
Different treatment of different entities is con-
stitutionally permissible only where there is “a rational
difference of condition or situation existing in the per-
sons or objects upon which the classification rests”,
Davis v. Commonwealth Edison Co., 61 Ill.2d 494, 497
(1975). Here neither the AAR Agreement nor any other
factor justifies treating this Petitioner differently from
any other individual or corporate plaintiff by depriving
it of the remedy afforded under the strict liability doc-
trine.
CONCLUSION
If state reviewing courts are free to substitute their
judgments on disputed fact issues and thereby overturn
jury verdicts reached after trials which are free of
reversible error, then the constitutionally guaranteed
right to trial by jury has been reduced to a mockery,
and due process of law has been denied. The Supreme
Court of Illinois, having refused even to hear the case, in
violation of the right granted by its own rules, has
therefore refused to correct this constitutional depriva-
—28—
tion. It thus remains for this Court to reaffirm the
rights of litigants to the due process of law guaranteed
by the Constitution. If this right is to have any meaning
at all, it must include the right to an appellate review of
a jury verdict which is restrained by appropriate
judicial standards.
Similarly, the nation’s railroads are beset with enough
problems without bearing the additional burden of dis-
criminatory application of a state common law remedy
in such a way as to deny the railroad Plaintiff herein
rights granted to every other individual and corporate
plaintiff under the law of Illinois. There is no “rational
difference of condition” which justifies such a result, and
it should not be allowed.
For the same reasons which moved this Court in Ten-
nant v. Peoria & P.U. Ry., supra, and other cases cited
herein, to protect the rights of litigants from judicial
usurpation of the jury’s function, and to protect parties
from a denial of the equal protection of the laws, the
petition for a writ of certiorari should be granted.
Respectfully submitted,
LORD, BISSELL & BROOK
115 South LaSalle Street
Chicago, Illinois 60603
CASSIDY, CASSIDY, MUELLER & PRICE
800 Lehmann Building
Peoria, Illinois 61602
Attorneys for Petitioner,
Toledo, Peoria & Western Railr
CORNELIUS P. CALLAHAN
HUGH C. GRIFFIN
ROBERT P. SCHMIDT
Of Counsel.
ee ee ee ee —
=~!
.
*
¥
APPENDIX
Verdict as to Count I
Verdict as to Count II
Special Interrogatory as to Count I
Special Interrogatory as to Count II
Opinion of the Appellate Court of Illinois
Illinois Supreme Court Rule 317
Petition for Appeal as a Matter of Right or, in
the Alternative, Petition for Leave to Appeal
Illinois Supreme Court Denial of Petition for
Leave to Appeal
Motion for Ruling on Petition for Appeal as a
Matter of Right
Illinois Supreme Court Denial of Motion for
Ruling
— jla—
APPENDIX 1
Verdict as to Count I
C677 Verdict of Jury as to Count I of the complaint,
filed October 29, 1976, set forth as follows:
‘*We, the Jury, find for the plaintiff and against
the defendant as to Count I of the complaint.
We assess the damages in the sum of $1,787,-
491.05.’’
/s/ Howard W. Bedell
ForREMAN
/s/ Arthur D. Allen
/s/ Herman Heinz
/s/ Toni Werner
/s/ Louisa Weller
/s/ Lucille Ross
/s/ Floy M. Bullock
/s/ Edna Braten
/s/ Ethel Hulbert
/s/ Carol Aton
/s/ Philip G. Maser
/s/ Pete L. Draksler
—2a— —Ja—
Verdict as to Count II Special Interrogatory as to Count I
C678 Verdict of Jury as to Count II of the complaint, C679 Jury’s answer to Special Interrogatory dealing
filed October 29, 1976, set forth as follows: with ‘‘rebuilt’’, filed October 29, 1976, set forth as
‘“We, the Jury, find for the plaintiff and against —
the defendant as to Count II of the complaint. You are instructed to answer the following special
We assess the damages in the sume of $1,787,- interrogatory by writing in the blank space either
491.05.’’ the word ‘‘yes’’ or ‘‘no’’, as you may find. Each
/s/ Howard W. Bedell juror should sign the interrogatory answer, in the
ForEMAN spaces therefor provided at the foot of the page:
/s/ Arthur D. Allen With respect to Count I of the complaint, do you
find from your consideration of all the evidence and
/s/ Herman Heinz under the instructions of the court that the defend-
/s/ Toni Werner ant in February, 1969, rebuilt car CB&Q1825447
/s/ Louisa Weller Answer: Yes
/s/ Lucille Ross /s/ Howard W. Bedell
FoREMAN
/s/ Floy M. Bullock
/s/ Edna Braten
/s/ Ethel Hulbert
/s/ Carol Aton
/8/ Philip G. Maser
/s/ Pete L. Draksler
/s/ Arthur D. Allen
/s/ Herman Heinz
/s/ Louisa Weller
/s/ Lucille Ross
/s/ Toni Werner
/s/ Floy M. Bullock
/s/ Edna Braten
/s/ Ethel Hulbert
/s/ Carol Aton
/s/ Philip G. Maser
/s/ Pete L. Draksler
#
4
|
4
a
a
“i
y
+A
3
we
‘f
M
*t
C680
—4a—
Special Interrogatory as to Count II
Jury’s Answer to Special Interrogatory dealing
with plaintiff’s contributory negligence, filed Octo-
ber 29, 1976, set forth as follows:
You are instructed to answer the following special
interrogatory by writing in the blank space either
the word ‘‘yes’’ or ‘‘no’’, as you may find. Each
juror should sign the interrogatory answer, in the
spaces therefor provided at the foot of the page:
With respect to Count II of the complaint, do you
find from your consideration of all the evidence and
under the instructions of the court that the plaintiff,
before and at the time of the occurrence, was guilty
of contributory negligence which proximately con-
tributed to cause the alleged damages?
Answer: No
/s/ Howard W. Bedell
ForEMAN
/s/ Arthur D. Allen
/s/ Herman Heinz
/s/ Louisa Weller
/s/ Lucille Ross
/s/ Toni Werner
/s/ Floy M. Bullock
/s/ Edna Braten
/s/ Ethel Hulbert
/s/ Carol Aton
/s/ Philip G. Maser
/s/ Pete L. Draksler
—5a—
APPENDIX 2
In the
Anpvellate Court of Plinois
Thicd Judicial Bistrict
TOLEDO, PEORIA & WESTERN
RAILROAD, a corporation, *Clreatt Court
the
Plaintiff-Appellee, Tenth Judicial
No. 77-506 vs. > Guu ieee.
Honorabl
BURLINGTON NORTHERN, INO., Albert Pucel,
a corporation, Circuit Judge,
Defendant-A ppellant. }
Opinion of the Appellate Court of Illinois
Mr. Justice Srencen delivered the opinion of the Court:
Defendant Burlington Northern, Inc., brings this appeal
from a judgment for $1,787,500 entered in favor of plain-
tiff, Toledo, Peoria & Western Railroad, in a product lia-
bility action arising out of a 1970 train derailment which
caused numerous explosions and extensive damage at Cres-
cent City, Illinois.
After the catastrophic accident, investigators determined
that the derailment occurred when a ‘‘hot box’’ caused a
wheel to come off a hopper car identified as car CB&Q
182544 and owned by Chicago, Burlington & Quincy Rail-
road, a predecessor to defendant Burlington Northern,
a ae Ate ts s ~~
—§a—
Inc. In 1946 CB&Q manufactured the 70-ton covered hop-
per car involved here and equipped it with solid or friction
bearings.
The solid bearing assemblies used on railroad cars are
composed of the journal, which is the machined end of the
axle; a 50-pound bearing positioned over the journal, the
wedge, w!2h is located over the bearing to control upward
movement; the lubricator pad, which transmits oil to the
journal and bearing; and the journal box which encloses
all components and also contains the lubricating oil. In
operation the journal and axle turn with the wheels and
draw oil through the lubricator pad to form a film be-
tween the journal and the bearing. Proper function of a
solid bearing assembly requires an adequate supply of
lubrication, proper positioning of components, and the ab-
sence of contaminants. The components can be inspected
by opening the journal box lid.
Roller bearings were first developed about 1949 and since
1958 have been used exclusively on all new cars built by
CB&Q and later by Burlington. A roller bearing assembly
is composed of a journal and a collar consisting of two
circular races in which the roller bearings turn. Roller
bearing assemblies are sealed units that cannot be viewed
on inspection, and they require annual lubrication.
A ‘‘hot box’’ is a fire in a journal box caused by exces-
sive friction. Hot boxes occur with more frequency where
solid bearings are used than with roller bearings. The As-
sociation of American Railroads has adopted an Inter-
change Rule which imposes the primary responsibility for
inspection and lubrication of all freight cars upon the rail-
road to which a car has been interchanged. Both plaintiff
and defendant had agreed to be bound by the AAR Inter-
change Rules prior to the accident.
In 1969 the hopper car involved here underwent sched-
uled maintenance at defendant’s plant in Havelock, Ne-
—fa—
braska. The solid bearing assemblies were replaced with a
new solid bearing assembly, some components of an im-
proved design were added, and the car was given a new
number (CB&Q 182544). At that time, it was technologically
possible to convert solid bearings to roller bearings, and
in fact the Rules of the Association of American Railroads
required rebuilt 100-ton cars to be so converted. The Rules
also required all new cars to be equipped with roller bear-
ings. However, a 70-ton car like this one was in full com-
pliance with solid bearings. After being rebuilt and prior to
the accident at Crescent City, car CB&Q 182544 experienced
three bearing failures, but none of these involved the bear-
ing at the L4 wheel position.
On June 20, 1970, car CB&Q 182544 was received by
plaintiff railroad at its East Peoria yard, and all the jour-
nals were inspected by plaintiff’s employees. During the
early morning hours of June 21, this car was incorporated
into train 20 which was made up of 103 loaded freight
cars, 5 empties, 1 caboose, and 4 locomotives. After leav-
ing East Peoria at 3:25 a.m., train 20 proceeded eastward
toward its destination at Effner, Indiana. Along the route
the four members of the train crew, two of whom rode in
the locomotive and two in the caboose, visually inspected
the train as it went around curves.
During 1970 plaintiff operated all its trains in accord-
ance with certain rules which required all employees to
be constantly on the lookout for hot boxes and for signals
from railroaders and the general public. The members of
the crew of train 20 insist that they repeatedly watched
for smoke or flames during the trip. Railroad employees
at Forrest and at Weston, Illinois, gave the crew of train
20 a ‘“‘highball’’ sign indicating that everything was in
order. Crew members saw a similar ‘‘highball’’ sign given
by an Illinois Central operator at Gilman, Illinois, which
ae re ak we ERE gk, FR)
LT SR ae Nee RS Fa ES SS ES LS PER UM od og ms Seine gees kee ae aa TE
—8a—
is only a few miles from the scene of the accident; how-
ever, one-half block east of the Gilman depot, a man wait-
ing to cross the tracks saw flames shooting out from the
wheel of a car on the north side of the train but he was
unable to give a warning. Another man waiting for the
train to pass the Route 45 crossing on the east edge of
Gilman also saw a flaming hot box on a front wheel of a
hopper car. He tried to signal to a crewman in the caboose,
but the crewman did not appear to see him. The train
hauled car 182544 another eight miles until the journal
and bearing on the L4 wheel burned off, the side frame
dropped to the track, and finally the entire car bounced
into the air at the Route 49 crossing on the west edge of
Crescent City. The lead wheels came down off the track
and ran on the ties about 1,009 feet, causing the general
derailment which followed. At that point the train auto-
matically went into an emergency stop. A tank car filled
with liquid propane gas exploded almost at once followed
later by additional explosions which caused numerous fires
and inflicted severe damage to persons and property in
Crescent City. Plaintiff eventually settled all damage claims
for a total of $1,755,400 and also expended $32,000 for
damage to its own track and equipment.
In this product liability action against defendant, plain-
tiff seeks to recover in tort, under Count I on a theory of
strict liability and, under Count II on a theory of negli-
gence, for the rebuilding of car CB&Q 182544 in an unrea-
sonably dangerous and defective condition.
At the trial by jury plaintiff did not adduce evidence
of any manufacturing or physical defect in the bearing
assembly of car CB&Q 182544, but did introduce evidence
relating to the general risks or dangers of hot boxes oc-
curring when solid bearings are used. The jury was in-
structed that the issue under Count I was whether, at
the time the car left the control of defendant after being
—IJa—
rebuilt, there existed a condition which rendered the car
unreasonably dangerous in that it was equipped with solid
bearings rather than with roller bearings. The issue under
Count II was stated to be whether defendant was negli-
gent in failing to equip the car with roller bearings in
1969. The jury was also instructed as to defendant’s af-
firmative defenses to Count I based on misuse and as-
sumption of the risk.
Motions for directed verdicts filed by both parties were
denied by the court, and after the case was submitted to
the jury, verdicts were returned in favor of plaintiff as
to both Count I and Count II. Damages were assessed at
$1,787,491.05. In response to two special interrogatories
the jury found that defendant did ‘‘rebuild’’ car CB&Q
182544 in 1969, thus rejecting defendant’s argument that
the car was merely repaired, and the jury found that
plaintiff was not guilty of contributory negligence. After
the trial court denied defendant’s post-trial motion, this
appeal followed.
Defendant has raised a multiplicity of issues, but because
we conclude that judgment should have been entered for
defendant as a matter of law, we shall discuss only those
issues necessary to our decision.
Illinois first recognized strict liability in tort for de-
fective products in 1965 and has generally adopted the
elements of a strict liability action set out in Restatement
(Second) of Torts §402A. Plaintiff must prove that an
unreasonably dangerous condition existed in a product at
the time the product left the control of the seller or the
manufacturer and that the condition was the proximate
result of plaintiff’s injury or damage. (Suvada v. White
Motor Co. (1965), 32 Tl. 2d 612, 210 N.E.2d 182.) As is
noted in Comment g of the Restatement, a defective con-
dition is a ‘‘condition not contemplated by the ultimate
consumer which will be unreasonably dangerous to him.’’
TEREST Rieti sewed we
BA a nce EAE NA me 5 ROE ET
—10a—
(Restatement of Torts (Second) §402A, Comment g at
351; Dunham v. Vaughan & Bushnell Mfg. Co. (1969), 42
Til. 2d 339, 247 N.E.2d 401.) The justification for imposing
strict liability is that the public interest in human life
and health demands the protection of law against the sale
of defective products. Since the seller and the manu-
facturer solicit and invite use of a product by advertis-
ing, any losses to the user should be borne by those who
created the risk and reaped the profit by placing the prod-
uct in the stream of commerce. Suvada.
Under Count I of the complaint, plaintiff asserted that
solid bearings were unreasonably dangerous on this 70-
ton hopper car, considering the risk of hot boxes and the
availability of roller bearings, and therefore the defendant
should be held strictly liable for damages which were caused
by the bearing failure. Thus plaintiff, a railroad user of
car CB&Q 182544, is seeking to recover from defendant,
a railroad rebuilder of the car, for damages resulting from
a derailment caused by an undetected hot box in the bear-
ing assembly on one of the car’s wheels. At trial there was
ample evidence that plaintiff knew full well the risks and
dangers of transporting freight cars equipped with solid
bearings and that plaintiff, through its employees, re-
peatedly inspected all its trains, including train 20, for
just such a hot box occurrence. Plaintiff admitted that it
owned and operated cars with solid bearings and was still
using such cars at the time of trial, six years after the
accident. Plaintiff’s vice-president in charge of operations
testified that company rules required employees to be con-
stantly on the lookout for hot boxes and for distress signals
from bystanders. Furthermore the alleged defect here was
not a concealed physical flaw but purely a matter of de-
sign known to plaintiff when the car was accepted for
interchange.
—lla—
In a strict liability action brought in federal court by a
railroad against the manufacturer of a wheel which failed in
use, causing a derailment with resulting damages of $745,-
000, the trial court denied recovery and found that the plain-
tiff railroad ‘‘fully contemplated all the characteristics
of the wheel in question and that the wheel was neither
defective nor unreasonably dangerous.’’ (St. Louis-San
Francisco Ry. v. Armco Steel Corp. (E.D. Mo. 1973), 359
F. Supp. 760, 762.) On appeal the United States Court of
Appeals for the Eighth Circuit affirmed, commenting that
plaintiff was not in the position of ‘‘an unwary railway
passenger,’’ and that plaintiff’s employees regularly in-
spected wheels for cracks caused by metal fatigue. (St.
Louis-San Francisco Ry. v. Armco Steel Corp. (8th Cir.
1974), 490 F. 2d 367, cert. denied 417 U.S. 969, 94 S. Ct.
3173.) The court also observed:
‘‘[Plaintiff] is, in effect, urging this Court to go be-
yond the doctrine of strict liability and hold that [de-
fendant] is an insurer and, thus, responsible in dam-
ages to a railway company whenever one of its wheels
fails. We respond negatively to the urging.’’ 490 F.
2d at 370.
Similarly we think plaintiff in the case at bar seeks to
hold defendant responsible as an insurer for any dam-
ages resulting from a bearing failure on one of its rebuilt
cars. Not only would such a result do violence to the theory
underlying strict liability, but it would also fly in the face
of the contractual duty undertaken by plaintiff when it
agreed to be bound by the A.A.R. Interchange Rules that
required plaintiff to inspect, lubricate, and be responsible
for the condition of all cars on its line.
Plaintiff argues that defendant has erroneously sought
to equate plaintiff’s position with that of a purchaser who
furnishes design specifications to a manufacturer when in
fact plaintiff did not ‘‘choose’’ the solid bearing design
ss ee
SOBRE SE
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S24 ae ee Go inte Gk ot
a i te
—12a—
utilized by defendant. Plaintiff also says that it should
not be bound by A.A.R. standards because it was not a
voting member of the Association in 1970. Plaintiff over-
looks the fact that it voluntarily agreed to ‘‘abide by the
Code of Rules governing the condition of, repairs to, and
settlement for freight cars for the interchange of traffic
as formulated by * * *’’ the A.A.R. Also plaintiff was a
voting member of the Association until September 1, 1968,
and the bearing standards were adopted prior to that
date.
We conclude therefore that, as a matter of law, the de-
sign of car CB&Q 182544 did not create a condition that
was unreasonably dangerous to plaintiff, and on the basis
of the undisputed facts in the record, it was error to sub-
mit this case to the jury.
We believe a reversal is also necessary because the evi-
dence shows that, as a matter of law, plaintiff assumed
the risk of danger by accepting the car in interchange with
full knowledge of the hazards involved. The Supreme Court
of Illinois has stated that, in product liability actions, as-
sumption of the risk is a bar to recovery ‘‘if the plaintiff
is aware of the product defect and voluntarily proceeds
in disregard of the known danger.’’ (Court v. Grzelinski
(1978), 72 Ill. 2d 141, 379 N.B.2d 281, 284; Williams v.
Brown Mfg. Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305.) In
Prince v. Gallis Mfg. Co. (3d Dist. 1978), 58 Ill. App. 3d
1056, 374 N.E.2d 1318, a coal miner, who used a roof bolt-
ing machine without a wrench retainer after being warned
of the danger, was injured when the wrench flew out of
the machine and struck him in the face. This court ruled
that the defense of assumption of the risk was established
as a matter of law, thus barring recovery under a strict
liability theory. Accord, Fore v. Vermeer Mfg. Co. (3rd
Dist. 1972), 7 Ill. App. 3d 346, 287 N.E.2d 526.
—13a—
In the case at bar, the testimony of plaintiff’s own wit-
nesses is clear and uncontradicted that plaintiff was fully
aware of the hazard of a hot box occurring on cars equip-
ped with solid bearings. Plaintiff owned 550 cars with
solid bearings in 1970 and had considerable experience with
hot boxes. Furthermore, prior to June 21, 1970, plaintiff
had determined that a hot box detection device should be
installed on the track at a point just west of Gilman, and
after the accident did install one at that location. As-
sumption of the risk is a matter of law where, as here, the
facts are undisputed and reasonable men would not differ
as to the conclusion to be drawn. Fore v. Vermeer Mfg. Co.
(3d Dist. 1972), 7 Ill. App. 3d 346, 287 N.E.2d 526; 65A
C.J.S. Negligence § 251(2) (1966).
On the basis of the record, we believe plaintiff is barred
from recovery under strict liability by its assumption of
the risk when it undertook to transport car CB&Q 182544
with knowledge of its solid bearings and the attendant dan-
gers. Having assumed the risk, plaintiff must bear the
loss.
The jury also returned a verdict for plaintiff under Count
II which alleged defendant’s negligence in rebuilding the
hopper car in an unreasonably dangerous and defective
condition. As our previous discussion of the evidence indi-
cates, there was no basis for a finding of negligence since
the bearing was not physically defective and the design was
not unreasonably dangerous but was customarily used with-
in the industry. The fact that some other design might
conceivably be safer is not proof of negligence. (Watts
v. Bacon & Van Buskirk Glass Co. (1959), 18 Ill. 2d 182,
163 N.E.2d 425.) Therefore we hold that, as a matter of
law, defendant was not negligent, and the judgment must
be reversed.
ihe =A care
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A SE te nai Pe ER Na gs ae oe Ny Reet ee ae ee cat
—l4a—
The defendant has submitted as additional authority
several recent product liability decisions, including Crowe
v. Public Bldg. Com. of Chicago, Docket No. 50258, (Sept.
Term 1978), ...... | ao a ales N.E.2d_ ...... ; Hunt v.
Blasius, Docket No. 50404 (Sept. Term 1978), ...... Til. 2d
cake y . N.EL2d ......; Sipari v. Villa Olivia Country Club
(1st Dist. 1978), 63 Ill. App. 3d 985, 380 N.E.2d 819. We
have also noted a tank car explosion case where recovery
was allowed and was based upon a theory of strict lia-
bility because of a defective design. (Rucker v. Norfolk
d& W. Ry. Co., (5th Dist. 1978), ...... Il. App. 3d ......, 381
N.E.2d 715.) All of these cases are generally distinguish-
able from the case at bar because in all of them the plain-
tiff is either an employee or a member of the general pub-
lic while in the instant case plaintiff is a railroad with
the same expertise and knowledge of the characteristics of
solid bearings as defendant. We find more helpful the ob-
servation of the court in the recent case of Torres v. South-
ern Pacific Transportation Co. (9th Cir. 1978), 584 F. 2d
900, that the interchange of railroad cars is a highly spe-
cialized industry use which is too dissimilar to the com-
mercial distribution of a product to warrant application of
the doctrine of strict liability. In Torres, the reviewing
court affirmed a summary judgment in favor of the rail-
road-owner of a freight car which developed a hot box
while being operated by another railroad. In the resulting
derailment two trespassers riding on another car were in-
jured.
Accordingly, we reverse the judgment of the Circuit Court
of Peoria County.
Reversed.
Scort, P.J., and Stouper, J., concur.
—15a—
APPENDIX 3
Illinois Supreme Court Rule 317
317. (Supreme Court Rule 317). Appeals from the A
pellate Court to the Supreme Court as of Right .
Appeals from the Appellate Court shall lie to the Su-
preme Court as a matter of right in cases in which a ques-
tion under the Constitution of the United States or of this
State arises for the first time in and as a result of the
action of the Appellate Court. The appeal shall be initiated
by filing a petition in the form prescribed by Rule 315,
except that the petition shall be entitled ‘‘Petition for
Appeal as a Matter of Right,’’ item (1) of the petition
shall state that the appeal is taken as a matter of right,
and item (5) shall contain argument as to why appeal to
the Supreme Court lies as a matter of right. In other re-
spects the procedure is governed by Rule 315. If leave to
appeal is to be sought in the alternative, the requests there-
for must be included in the same petition, and item (1) .
thereof shall include an alternative prayer for leave to ap-
peal, and item (5) the argument as to why in the alternative
leave to appeal should be allowed as a matter of sound
judicial discretion. When both appeal as a matter of right
and leave to appeal are sought, both requests will be dis-
posed of by a single order. If the court allows the petition,
exverpts from record or an abstract and briefs shall be
ny as provided in the case of appeal by leave under Rule ,
peed VEO Se PRR oy toe
ond
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Me ete CEM
Be Ne ee ES te SS EN ae,
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—16a—
APPENDIX 4
Petition for Appeal as a Matter of Right or, in the
Alternative, Petition for Leave to Appeal
In the
Supreme Court of Illinois
TOLEDO, PEORIA & WESTERN RAILROAD, a corporation,
Plaintiff, Petitioner (Appellee Below),
No. 51806 va.
BURLINGTON NORTHERN, INC., a corporation,
Defendant, Respondent (Appellant Below).
rrr S75—000OOoOoOo=
ition
for Appeal as a Matter of Right or, in the Alternative, Pet
a tae os Appeal from the Appellate Court of Illinois, Third
District. There Heard on Appeal from the Circuit Court of Peoria County.
Honorable Albert Pucci, Judge Presiding.
PETITION FOR APPEAL AS A MATTER OF RIGHT
OR, IN THE ALTERNATIVE,
PETITION FOR LEAVE TO APPEAL
To The Honorable Justices Of The Supreme Court Of
Illinois :
Your petitioner, Toledo, Peoria & Western Railroad, a
corporation, respectfully takes this appeal as a matter of
right, or in the alternative, prays for leave to appeal from
the decision of the Appellate Court of Illinois, Third Judi-
cial District, reversing outright the $1,787,491.05 judgment
entered in the Circuit Court on the verdicts and special
findings of the jury in favor of Petitioner. A copy of the
opinion of the Appellate Court is included herein as Ap-
pendix A.
—17a—
Petitioner prays that the opinion of the Appellate Court
be reversed and that the judgment of the Circuit Court be
affirmed.
JURISDICTIONAL STATEMENT
The opinion of the Appellate Court was filed December
29, 1978. Plaintiff’s petition for rehearing was filed on
January 19, 1979. On February 14, 1979, the Appellate
Court entered the following order:
Opinion heretofore filed in the above case is re-
called and withdrawn and the revised opinion is filed
herein. Petition for Rehearing with respect to the prior
opinion which has been recalled is DENIED.
POINTS RELIED UPON FOR REVERSAL
This is a case that was tried to a jury for three weeks
on both counts of plaintiff’s complaint—negligence and
strict liability. More than 1600 pages of testimony were
presented and some 220 documentary and photographic
exhibits were introduced in evidence. The issues of negli-
gence and strict liability were submitted to the jury under
instructions drafted and tendered by defendant (A. 165-
166), which included its defenses of contributory negli-
gence, assumption of risk and misuse. The jury returned
separate $1,787,491.05 verdicts in favor of plaintiff on each
count of the complaint, the trial judge entered judgment
on the verdicts and denied defendant’s post trial motions.
The Appellate Court summarily reversed the judgment
entered on the verdicts and entered judgment in favor of
defendant.
SLANT TOM DO i mec geen. oe
ne eat RS AE IE an tt REI seca
er
—18a—
APPEAL AS A MATTER OF RIGHT
L
TE EN-
BY SUMMARILY REVERSING THE JUDGMENT
TERED ON THE VERDICTS AND SPECIAL FINDINGS OF
THE JURY, THE APPELLATE COURT HAS DEPRIVED
PETITIONER OF ITS CONSTITUTIONAL RIGHT TO TRIAL
BY JURY.
A. The Evidence Supported The Jury’s Verdict On The Is-
sue Of Whether Defendant’s Acts And Omissions Dur-
ing The 1969 Rebuilding Of Car CB&Q 182544 Consti-
tuted A Failure To Exercise Ordinary Care.
B. The Evidence Supported The Jury’s Finding That Car
CB&Q 182544 Was Defective And Unreasonably Dan-
gerous.
C. The Issue Of Assumption Of Risk Was For The Jury
To Decide.
D. None Of The Authorities Cited By The Appellate Court
Justify Its Rejection Of The Jury’s Verdicts.
I
THE APPELLATE COURT’S OPINION DEPRIVES PLAIN-
TIFF OF ITS CONSTITUTIONAL RIGHT TO DUE PROCESS
AND EQUAL PROTECTION OF LAW.
PETITION FOR LEAVE TO APPEAL
I,
THE APPELLATE COURT’S OPINION CONFLICTS WITH
DECISIONS OF OTHER APPELLATE DISTRICTS IN THIS
STATE.
A. Illinois Decisions Consistently Hold That Contractual
Defenses To Strict Liability Actions Are Not Recog-
nized.
B. This Decision Creates A Direct Conflict Between The
Third And Fifth Districts.
at I a I SN ch NL a Tl a iy i i hen en ees
—19a—
STATEMENT OF FACTS
Because the Appellate Court set aside two separate and
independent jury verdicts, one finding in favor of plain-
tiff on the negligence count of its complaint and the other
finding in favor of plaintiff on the strict product liability
count, a full statement of facts is in order in this petition.
In February 1969, defendant rebuilt a 70-ton hopper car
(CB&Q 182544) that it had originally manufactured in
1946. In the rebuilding process, the eight journal bearings
on the car were replaced with a similar bearing known as
a ‘‘plain bearing,’’ even though a newer and safer bearing
known as a ‘‘roller bearing’’ was available and had for
the preceding 10 years been installed on every new freight
car manufactured by Burlington. Thereafter, unknown to
plaintiff, three of these plain bearings failed during the
cear’s first 16,000 miles of service. The fourth failure, on
June 21, 1970, caused the Crescent City derailment for
which the plaintiff brought the instant action.
Train No. 20, June 21, 1970
TP&W Train No. 20, consisting of four locomotive units
and 108 cars, left Peoria early in the morning of June
21, 1970, en route to Effner, Indiana. CB&Q 182544 was
the 20th car behind the engines. Behind car 182544 were
several tank cars carrying liquified petroleum gas, (A.
292; BE 8), commonly known as LPG, a highly explosive
commodity when exposed to sparks, fire or heat.
After leaving Peoria, the train proceeded easterly in a
routine manner. En route it was inspected three times as it
PES EAE AE ROR cS Se a
oe Se ~ eeee eheed
a aS an aa ee
—
—20a—
rolled past employees of the TP&W, Norfolk and Western
and Illinois Central. None of these railroaders detected
any problems with the train, and all gave the crew of train
20 a ‘“‘highball sign,’’ an indication that the train was in
good order (A. 178, 180, 184, 187, 197-198, 200, 210-211,
214-215, 355, 360).
The train crew itself also periodically inspected the
train in the normal fashion from their respective locations
in the engine and the caboose and observed nothing un-
usual (A. 178-183, 186-192, 196-207, 218-221).
The Derailment
Some time before Train No. 20 reached Crescent City,
a ‘‘hot box’’ occurred at the plain journal bearing on the
left, or north, side of the fourth axle (the ‘‘L4’’ journal) of
car CB&Q 182544. The hot box caused the end of the
journal to ‘‘burn off’’ from the axle with the result that
the wheel came off the track derailing car 182544 as
well as 16 other cars, including 10 tank cars, that were
behind it (A. 229-234, 263-272, 281-284, 292, 315, 324) (PI.
Exs. 70-81, 85-89) (BE 8-10). One witness testified that
he saw the hot box as the train passed through the east
portion of Gilman about daybreak, but he was unable to
communicate it to the crew (A. 577-582). The first notice
the crew had of something unusual was at approximately
6:30 a.m. when the train brakes went into emergency and
one of the tank cars immediately exploded (A. 175, 184-
185, 193, 208). The explosions continued after the train
came to a stop, causing fires which iasted through June
93, 1970, and scattering debris, fire and ruin throughout
the town (A. 244-255) (Supp. BE 53-55).
Se ee ee
—2la—
The Damages
The derailment and ensuing explosions and fire caused
extensive damage to persons and property in Crescent
City (Supp. BE 13-41, 53-55). Shortly after the occur-
rence, TP&W set up an office at Crescent City to process
damage claims resulting from the oceurrence (A. 427). All
such claims were promptly settled without lawsuits being
filed except for certain bodily injury claims brought by
firemen called to fight the fires. The payments made by
TP&W to settle third party claims totalled $1,755,401.66
(Supp. BE 13-36), and the reasonableness of this amount
has not been challenged by Burlington. In addition, TP&W
incurred $32,089.39 damages resulting from the destruction,
necessary repair and replacement of its own track and
equipment, and other such expenses arising from the oc-
currence (Supp. BE 39-41) (A. 425).
General History and Definition of Terms
In railroad terminology, a ‘‘journal’’ is that portion of
a railroad car axle which extends outside the wheels (see
photo, BE 7). The wheels are pressed on the axle, and the
wheels, axle and journal turn as one unit (A. 274-275). Two
axle/wheel/journal sets are contained in one unit called a
‘*truck’’ (see photo, Supp. BE 56). The truck is attached to
the car body through a swivel and pin arrangement at the
center line of the car (A. 279-280). Each car rides on two
trucks, for a total of four axles, eight wheels and eight
journals per car (A. 242-243) (Supp. BE 56, 57).
aad pickic - ——, asserted defenses to these claims and
ney mn paid. See, eg., You . TPEW, , ;
3d 167 (3rd Dist. 1977). : mS oe
—22a—
A ‘‘journal bearing’’ is applied to each journal to trans-
mit the weight of the car to the journal and to permit the
wheels, axles and journals to rotate freely relative to the
rest of the truck (A. 276). The journal and bearing are
enclosed in a ‘‘journal box’’ which surrounds and protects
the moving parts (see photo, BE 18) (A. 242-243, 276).
For years, the only type of journal bearing in use was
the ‘‘plain’’ or ‘‘friction’’ bearing. Plain bearings are
curved pieces of metal consisting mostly of brass which
fit over the top of the journal (A. 276) (see photo, BE 4).
Since in this design, movement of the freight car causes
the journal to rotate against the surface of the bearing, a
quantity of oil must be placed in the bottom of the journal
box, along with a Jubricator pad designed to apply the oil
in a thin film to the underside of the journal and the in-
side surface of the bearing (A. 276, 637-639) (see photo,
BE 18). As the journal rotates, this oil is carried around
the circumference of the journal and is intended to form
a protective, lubricating barrier between the journal and
bearing (A. 242-244, 276-280, 459-462, 641).
Problem of Plain Bearings—“Hot Boxes”
For proper operation of a plain bearing, the thin oil film
applied to the journal by the lubricator pad must always
be strong enough to support the weight of the car under
conditions of both static and dynamic load (A. 464-468).
If for any reason this oil film breaks down, the rotating
steel journal will rub directly against the metal bearing
causing friction and heat which in turn can lead to a fur-
ther deterioration of the lubrication and ultimately a de-
struction of the bearing and ‘‘burn off’’ of the entire jour-
nal (A. 612). This lubrication breakdown and resulting
—23a—
friction and heat at the journal is known in railroading
terminology as a ‘‘hot box.’’
Hot boxes have been a serious problem in the railroad
industry for many years despite technological advances
in the design and manufacture of plain bearings (A. 409).
Studies demonstrated that the hot box problem was in-
herent in the plain bearing design simply because the nor-
mal forces reasonably to be expected in ordinary railroad
operations over good track can still result in dynamic
loads at the journal higher than the oil film between the
journal and the bearing can tolerate (A. 465-471). Costly
hot box detectors were developed (A. 551-557), but ex-
perience demonstrated that they were not as reliable as
human observation in detecting hot boxes on movin i
tra
(A. 565). iii
Development and Acceptance of Roller
Bearings—a Safer Alternative
In reaction to the continuing hot box problem inherent
in the plain bearing design, a new bearing known as a
“roller bearing’’ was developed in the 1950’s and 1960’s
(A. 607-608, 612), and subsequently manufactured by at
least six different companies (A. 510). A roller bearing
consists of a ring of cylinders or rollers that surround the
Journal. When a roller bearing car moves, these rollers or
cylinders roll against a collar pressed on the journal thus
greatly reducing the friction and heat buildup which can
occur with plain bearings (A. 473-474, 608-609). Also, be-
cause roller bearings do not require inspection, labor costs
can be saved (A. 611).
The success of the roller bearing design and its solu-
tion of the hot box problem was such that by the mid-
—24a—
1960’s there was a nationwide effort by the railroad in-
dustry to convert by stages the entire national car fleet
from the older, plain bearings to the newer and safer
roller bearings (A. 301, 440). By the end of 1970, some
656,911 freight cars had been equipped with roller bear-
ings (BE 41). As stated by Burlington’s own representa-
tive on the Mechanical Division of the Association of Amer-
ican Railroads (AAR), ‘‘there was a growing awareness
in the industry that roller bearing cars were less subject
to failure than friction bearing cars’’ (A. 404). The AAR
adopted rules requiring the installation of roller bearings
exclusively on all new cars built after August 1, 1968, and
on all cars rebuilt (in accordance with the AAR definition
of that term) after January 1, 1970 (BE 41) (A. 403-404).
The AAR further required that as of January 1, 1973, all
plain bearing freight cars of 100 tons or more must be
‘‘retrofitted’’ with roller bearings (BE 41) (A. 404).
Long before the AAR acted on the problem, the rail-
roads themselves took action. The L&N Railroad, for ex-
ample, undertook a program to convert its 70 ton covered
hopper car fleet to roller bearings in late 1967 (A. 440).
Burlington itself began installing roller bearings exclusive-
ly on all new freight cars manufactured at its Havelock
shops in 1958 (A. 378, 408).
History of Burlington Car CB&Q 182544
Once CB&Q 182544 was identified as the cause of the
Crescent City derailment (a fact which Burlington does
not dispute), the car’s history was investigated (Supp. BE
1). The 70-ton covered hopper car* was manufactured by
* Designed to carry bulk commodities, such as sand, cement, etc.
(A. 407) (see photo, Supp. BE 57).
—25a—
the Chicago, Burlington and Quincy Railroad (CB&Q) in
1946 and given car number 180477 (A. 369). Since roller
bearings were not generally available for freight cars in
1946 (A. 404), the car was manufactured with plain jour-
nal bearings. Thereafter, the car operated in railroad serv-
ice until February of 1969 when, together with 300 other
Burlington cars most in need of repair, it was returned
to Burlington’s Havelock, Nebraska, shops where Burling-
ton did extensive work on it and gave it a new number—
CB&Q 182544 (A. 407). Burlington’s own internal cor-
respondence referred to the February 1969, work as ‘‘re-
building”’ or ‘‘reconstruction’’ of the car (A. 405-406) (BE
28-31), and the jury expressly found that Burlington ‘‘in
February 1969, rebuilt car CB&Q 182544’? (A. 112-113).
The various items of the car that were either repaired
or replaced by Burlington in February of 1969 occupy
many pages of the record (BE 20-31) (A. 365-377) and
included the wheels, hatch covers and rods, draft arm and
center sill, bolster plate, coupler and uncoupler levers, the
draft gear, air brakes, end sills and end posts, handholds,
and roping staples. Most importantly, each of the trucks
containing the wheels, journals and axles were completely
removed and dismantled and all eight plain journal bear-
ings on the car were removed and replaced (A. 373-374).
However, despite the on-going industry effort to convert
to roller bearings, defendant Burlington installed plain
bearings on the rebuilt car even though:
1) Burlington had exclusively installed roller bearings
on all new cars manufactured at Havelock since
1958 (A. 378, 408) ;
2) Burlington had available all the equipment neces-
sary to convert to roller bearings in February of
1969 (A. 385) and subsequently made roller bearing
conversions on its older freight cars (A. 375, 632);
—26a—
3) The roller bearing conversion would have been rela-
tively easy at this time since the car was already dis-
mantled and the trucks were already removed and
disassembled (A. 385); and
4) Burlington’s own Assistant Shop Superintendent at
some time suggested to the Superintendent, Car De-
partment, that roller bearings be installed (A. 375,
530).
After rebuilding and renumbering, Burlington released
the car back into general service where it was either used
by Burlington or leased to other shippers and other rail-
roads in return for a daily (‘‘per diem’’) rental payment
to Burlington by the using railroad or industry (A. 424)
(BE 32-40) (Supp. BE 10-12).
History of 182544 After Rebuilding
Between the time car CB&Q 182544 left the Havelock
shops in February of 1969 and the Crescent City derail-
ment on June 21, 1970, it traveled 16,623 miles, of which
8,140 were loaded and 8,483 were empty (BE 32-40) (A.
399). During this first 16 months of use after rebuilding,
the car suffered five broken springs and three broken bear-
ings (Supp. BE 4-9) (A. 411), even though the expected
service life of each of the new plain journal bearings, es-
tablished by Burlington’s expert witness, was approximate-
sly 1,500,000 miles (A. 594). There was no evidence that
anyone connected with the TP&W knew that any of these
failures had occurred.
Events Immediately Preceding the
Crescent City Derailment
In early evening of June 20, 1970, some 35 railroad cars,
including car CB&Q 182544 loaded with industrial sand,
—27a—
were delivered to the TP&W at East Peoria, Illinois, by
the Peoria & Pekin Union Railroad Company (P&PU) (A.
328, 428) (Supp. BE 3, 12). The car had been part of a
train operated by the Burlington from Oregon, Illinois to
Galesburg, Illinois. Burlington had inspected the car, in-
cluding the journal bearings, twice on June 19 in its Gales-
burg yard and found everything in good order (A. 412-
413). The Burlington then moved it from Galesburg to
Peoria, and delivered it to the P&PU without any indica-
tion of mishandling (A. 642-643). The P&PU also would
have given the car the standard interchange inspection
(A. 319).
At East Peoria two TP&W car inspectors conducted the
standard interchange inspection of each car to check for
broken bearings, low oil, contaminants, ete. (A. 332-351) and
found nothing out of order. After the inspection, CB&Q
182544 was added to other cars to make up TP&W train
No. 20 (Supp. BE 2) and after a routine outbound in-
spection, the train departed for Effner, Indiana. There
was no evidence that the hot box or any other adverse
condition was observable while the car was in the East
Peoria Yards.
Cause of the Hot Box
The experts for both sides were of the opinion that the
hot box and resulting derailment at Crescent City were
caused by a rupture or failure of the oil film between the
journal and the plain bearing (A. 457, 622). When this
lubrication broke down, it resulted in metal-to-metal con-
tact between the bearing and the inside of the journal.
TP&W’s expert further testified that the failure was caused
by dynamic loads experienced in normal service (A. 457)
and that Burlington’s installation of ‘‘obsolete’’ plain bear-
—28a—
ings on the car in February, 1969 caused an ‘‘unnecessary
risk’’ (A. 497) and created an ‘‘unreasonably dangerous’’
condition (A. 478) that brought about the accident which,
in his opinion, would not have happened if roller bearings
had been installed on the car at that time (A. 480).
Verdicts, Findings, and Judgment Below
On October 29, 1976 the jury returned the following ver-
dicts in favor of plaintiff:
‘‘We, the Jury, find for the plaintiff and against the
defendant as to Count I of the complaint. We assess
the damages in the sum of $1,787,491.05.”’
‘‘We, the Jury, find for the plaintiff and against the
defendant as to Count II of the complaint. We assess
the damages in the sum of $1,787,491.05.’’ (A. 111-112)
Also, in answer to two special interrogatories tendered by
defendant, the jury expressly found that plaintiff was not
contributorily negligent and that the defendant did ‘‘re-
build’’ car CB&Q 182544 in February of 1969.
After polling of the jury, judgment in favor of plaintiff
in the amount of $1,787,491.05 was entered on the jury’s
verdicts and special findings (A. 114, 115). Defendant’s
post-trial motions were denied (A. 145).
Appellate Court Summarily Reverses
Jury Verdicts and Findings
Defendant appealed to the Appellate Court of Illinois
for the Third Judicial District and on December 29, 1978,
that Court issued an opinion reversing the $1,787,491.05
judgment entered in favor of plaintiff on the verdicts of
the jury. The Court held that defendant was entitled to
—29a—
judgment as a matter of law on both counts of the com-
plaint. It set aside the judgment entered in favor of the
plaintiff on the jury verdicts and entered judgment in
favor of defendant. Plaintiff filed a petition for rehear-
ing, pointing out that the basis of the Court’s ruling on
the negligence count—that plaintiff had assumed the risk
of the car—could not constitute a defense to a negligence
action in Illinois (Barrett v. Fritz, 42 Ill.2d 529) and fur-
ther that defendant did not plead assumption of risk as a
defense to the negligence count, did not argue assumption
of risk in the trial court or in the Appellate Court, and
that the jury was never instructed on that issue.
Thereupon, on February 14, 1979, the Appellate Court
issued a ‘‘revised’’ opinion eliminating the assumption of
risk holding on the negligence count but nevertheless en-
tering judgment as a matter of law in favor of defendant
and against plaintiff, holding that:
1. Defendant was not negligent in rebuilding the car
as a matter of law,
2. nod CB&Q 182544 was not defective as a matter of
aw,
3. Car CB&Q 182544 was not unreasonably dangerous
as a matter of law, and
4. Plaintiff assumed the risk of the defective bearing
as a matter of law.
In the same order, the Court withdrew its opinion of De-
cember 29, 1978, and denied plaintiff’s petition for re-
hearing.
> aeTewory
—30a—
ARGUMENT
APPEAL AS A MATTER OF RIGHT
IL
BY SUMMARILY REVERSING THE JUDGMENT EN-
TERED ON THE VERDICTS AND SPECIAL FINDINGS OF
THE JURY, THE APPELLATE COURT HAS DEPRIVED
PETITIONER OF ITS CONSTITUTIONAL RIGHT TO TRIAL
BY JURY.
This appeal is taken as a matter of right pursuant to
Supreme Court Rule 317 since the Appellate Court’s deci-
sion raises ‘‘for the first time’’ questions under Art. 1,
§ 13 of the Illinois Constitution of 1970 and Amendment
VII of the United States Constitution providing in perti-
nent part as follows:
‘““The right of trial by jury as heretofore enjoyed shall
remain inviolate.’’ (Ill. Const. Art. 1, § 13)
‘‘In Suits at common law, where the value in con-
troversy shall exceed twenty dollars, the right of trial
by jury shall be preserved and no fact tried by a jury,
shall be otherwise reexamined in any Court of the
United States, than according to the rules of the com-
mon law.’’ (U. S. Const. Amend. 7)
The Appellate Court substituted its view of the facts
for that of the jury on each of the two verdicts while at
the same time refusing to follow the standard enunciated
by this Court for setting aside such factual determinations
by a jury. Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d
494, 510 (1967); Jardine v. Arthur Rubloff, 73 Til.2d 31,
36 (1978).
Each issue discussed in the revised Appellate Court opin-
ion—negligence, defective and unreasonably dangerous con-
—3la—
dition, assumption of risk—was the subject of days and
weeks of disputed evidence and testimony. At the conclu-
sion of the evidence, counsel for both sides argued their
version of the facts to the jury. Each fact issue was then
submitted to the trier of fact—the jury. The jury returned
separate verdicts and special findings in favor of the
plaintiff and against defendant on each count of the com-
plaint.
Nevertheless, the Appellate Court summarily set aside
both jury verdicts and in essence held that plaintiff never
even had the right to a jury trial on its complaint. Under
these circumstances, constitutional deprivation is apparent.
In Tenneant v. Peoria € P.U. Ry., 321 U.S. 29 (1944), the
United States Supreme Court reversed the judgment of
the Court of Appeals which had reversed a jury verdict
in favor of plaintiff in an FELA ease. The language of
the Court, equally applicable to the direct appeal in the
case at bar, was as follows:
‘*Tt is the jury, not the court, which is the fact-finding
body. It weighs the contradictory evidence and infer-
ences, judges the credibility of witnesses, receives ex-
pert instructions, and draws the ultimate conclusion
as to the facts. The very essence of its function is to
select from among conflicting inferences and conclu-
sions that which it considers most reasonable. Wash-
ington & Georgetown R. Co. v. McDade, 135 U.S. 554,
O71, 572; Tiller v. Atlantic Coast Line R. Co., supra,
68; Bailey v. Central Vermont Ry., 319 U.S. 350, 353,
354. That conclusion, whether it relates to negligence,
causation or any other factual matter, cannot be ig-
nored. Courts are not free to reweigh the evidence and
set aside the jury verdict merely because the jury could
have drawn different inferences or conclusions or be-
cause judges feel that other results are more rea-
sonable.
Shee aoa i
Mi
ba]
—32a—
Upon an examination of the record we cannot say
that the inference drawn by this jury that respondent’s
negligence caused the fatal accident is without support
in the evidence. Thus to enter a judgment for the re-
spondent notwithstanding the verdict is to deprive
petitioner of the right to a jury trial.’’ (Emphasis
added)
Aside from the constitutional infringement engendered
by the Appellate Court’s outright reversal, the Appellate
Court’s substitution of its view of the facts in the place
of and above the findings of the jury contravenes the de-
cisions of this Court setting forth the standard for Ap-
pellate review of jury verdicts. Specifically in Pedrick v.
Peoria & Eastern R.R. Co., supra, 37 Tll.2d at 510 and
Jardine v. Rubloff, supra, 73 l.2d at 36 this Court held:
‘“‘In our judgment verdicts ought to be directed and
judgments N.O.V. entered only in those cases in which
all the evidence when viewed in its aspect most favor-
able to the opponent, so overwhelmingly favors movant
that no contrary verdict based on that evidence could
ever stand.”’
In the instant case, the Appellate Court neither cited nor
followed the Pedrick rule, but simply urged its view of
the evidence in support of a verdict for the defendant.
Such a disregard of the Pedrick rule was the basis of this
Court’s reversal of the Appellate Court in Jardine, supra
(73 Ill.2d at 36).
A. The Evidence Supported The Jury’s Verdict On The Is-
sue Of Whether Defendant’s Acts And Omissions Dur-
ing The 1969 Rebuilding Of Car CB&Q 182544 Consti-
tuted A Failure To Exercise Ordinary Care.
Plaintiff’s negligence case was based on evidence which
‘‘when viewed in its aspect most favorable’’ to plaintiff,
Pedrick, supra, established the following:
ri atlantis 2s.
———
—33a—
_ 1) In 1969 Burlington brought car CB&Q 182544
a its Havelock, Nebraska, shop for ‘‘rebuilding’’ (A.
_ 2) In 1968 and for years prior thereto roller bear-
ings were available which greatly reduced the pos-
sibility of a hot box failure on freight cars and, by
the mid-1960’s, the entire railroad industry was in the
process of converting plain bearing cars to the safer
roller bearings (A. 301, 440);
3 ) Prior to 1969 the AAR (Association of American
wren had “— that roller bearings be in-
stalled exclusively on all new cars built after A
1, 1968 (BE 41) (A. 403); joes
4) For at least 10 years prior to 1969, Burlington
mens” ae roller bearings exclusively ng all
new freight cars manufactured at it
7. on its Havelock shops
5) In 1969 Burlington had at its Havelock shop all
the equipment necessary to convert to roller bearings
and subsequently made roller bearing conversions on
all its older freight cars (A. 375, 385, 632) ;
6) Roller bearing conversion of the car would have
been even easier than usual since it was already dis-
mantled and the trucks containing the bearings had
been completely removed and disassembled (A. 385) ;
7) a ’s own assistant shop superintendent
sugges is superintendent that roll i
installed on the car*; nee
8) Nevertheless, Burlington saved the cost of con-
version and installed plain bearings on the rebuilt
* This testimony was first given during plaintiff’ i
This g plaintiff’s Section 60 ex-
amination of defendant ’s Assistant Superintendent E. J. Spomer
(A. 375). Later, during defendant’s case, Spomer claimed that his
recommendation had been made in 1971 or 1972 long after the cars
had already been rebuilt (A. 530).
SUSE ROE EIS CE RG
° —
~~ ~
ey Ie BN te Me ERT Mahi Pay
—34a—
car thereby exposing the public, including other rail-
roads, to the hot box hazards resulting in this acci-
dent®.
On these facts, the issue framed for the jury was clear—
Was the defendant’s conduct in rebuilding car CB&Q 182544
with obsolete plain bearings in 1969 when a practical and
much safer alternative was not only readily available but
recommended by the entire industry ‘‘something which a
reasonably careful person would do?’’ (I.P.1.2d § 10.01,
Pif’s Inst. No. 11, A. 152-153, Deft’s Inst. No. 34, A. 171).
The jury’s verdict in favor of plaintiff on the negligence
count of the complaint answered that question and that
answer was fully supported by the evidence.
B. The Evidence Supported The Jury’s Finding That Car
CB&Q 182544 Was Defective And Unreasonably Dan-
gerous.
Without citing Pedrick, applying the Pedrick test, dis-
cussing plaintiff’s evidence or analyzing the issue, the
Appellate Court stated at p. 8: ‘‘The design of Car CB&Q
182544 did not create a condition that was unreasonably
dangerous to plaintiff.’’ Contrary to this statement, the
evidence ‘‘viewed to its aspect most favorable to the plain-
tiff’? established that Burlington’s installation of hot box
prone plain bearings on car CB&Q 182544 in February of
1969—when safer roller bearings had long since been avail-
able and recommended throughout the industry, when Bur-
lington for the preceding 10 years had put roller bearings
® Plaintiff’s expert testified that the accident would not have
cceurred if roller bearings bad bee on the car (A. 480).
—35a—
on all its newly manufactured cars—created an unreason-
ably dangerous condition which brought about the instant
occurrence, and the jury expressly so found by their sepa-
rate verdict in favor of plaintiff on the strict liability count
of the complaint.
The availability and feasibility of an alternative device
or design which, more likely than not, would have pre-
vented the occurrence is the essence of proof in any strict
liability design case. In Wells v. Webb Machinery Co., 20
Ill.App.3d 545 (1st Dist. 1974), the actual cause of a punch
press accident was the failure of a limit switch which was
not manufactured by defendant. However, the jury ver-
dict against defendant was affirmed on the ground that
defendant could have adopted an alternative design which
would have prevented an accident when the switch failure
occurred. In Rivera v. Rockford Machine & Tool Co., 1 Tl.
App.3d 641 (1st Dist. 1971), the actual cause of a punch
press accident was the breaking of a replacement piston
rod that had not been manufactured by defendant. Never-
theless, the jury verdict against the defendant manufac-
turer was affirmed since the evidence established that an
alternative design was available which would not have
stressed the rod as much as the design used by defendant.
See also Gelsumino v. E. W. Bliss Co., 10 Tl. App.3d 604
(1st Dist. 1973); Neal v. Whirl Air Co. Corp., 43 Ill. App.
3d 266 (3rd Dist. 1976); Scott v. Dreis € Krump Mfg. Co.,
26 Ill. App.3d 971 (1st Dist. 1976).
In the recent case of Anderson v. Hyster Co., 74 Il.2d
364, this Court affirmed a strict liability verdict for de-
fective design against a forklift manufacturer, noting at
368 :
;
.
i
—36a—
‘“‘That a product was not reasonably safe by reason
of defective design may be proved, inter alia, by evi-
dence of the availability and feasibility of alternate
designs at the time of its manufacture, or that the
design used did not conform with the design stand-
ards of the industry, design guidelines provided by
an authoritative voluntary association, or design cri-
teria set by legislation or governmental regulation.’’
Similarly, in the case at bar, plaintiffs’ evidence showed
inter alia that the alternative design (roller bearings) was
both feasible and available at the time and place that car
CB&Q 182544 was rebuilt and that roller bearings had
long since been the ‘‘standard’’ of the industry. The fact
that in 1969 no rule or law actually required roller bear-
ings on 70-ton hopper cars was simply an element for
the jury to consider. Indeed, in another recent decision,
Rucker v. Norfolk & W. Ry., ...... Til. App.3d ...... , 381
N.E.2d 715 (5th Dist. 1978), the Appellate Court upheld
a strict liability verdict for defective design against a tank
car manufacturer for failure to install a protective shield
at the head of the car even though such ‘‘headshields’’ were
not required by any rule or law and were not at all widely
used in the industry.
Here, the evidence showed that the use of an alterna-
tive design (roller bearings) would significantly reduce hot
box occurrences from all causes, and the evidence was
certainly sufficient for the jury to find that the instant de-
railment would never have occurred if roller bearings had
been on the car as Professor Willis expressly testified
(A. 480). Countless cases have held that a manufacturer’s
failure to use an alternative design or an available safety
feature on its product presents at least a question of fact
for the jury under the strict liability theory. See Gel-
—37a—
sumino v. E. W. Bliss Co., 10 Ill.App.3d 604 (1st Dist.
1974); Neal v. Whirl Air Flow Corp., 48 Ill.App.3d 266
(3d Dist. 1976); Scott v. Dreis & K rump Mfg. Co., 26 Tl.
App.3d 971 (1st Dist. 1975); Rivera v. Rockford Machine
€& Tool Co., supra, 1 Ill.App.3d 641 (1st Dist. 1971); Wells
aa Machinery Co., supra, 29 Ill.App.3d 545 (1st Dist.
Furthermore, under this Court’s holding in Tweedy v.
Wright Ford Sales, Inc., 64 Tll.2d 570 (1976), a prima
facie strict liability case is established by proving the
failure of the product to perform in the manner reason-
ably to be expected in light of its nature and intended
function (64 Ill.2d at 574). See also, this Court’s recent
opinion in Gillespie v. R. D. Werner Co., Inc., supra
71 Ill.2d 319, reaffirming the Tweedy rationale. Moreover,
a defective condition is a ‘‘condition not contemplated
by the ultimate consumer which will be unreasonably dan-
gerous to him.’’ Restatement, Torts 2d § 402A, Comment g.
Burlington’s own witness established that new plain bear-
ings ought to last 1.5 million miles (A. 594). Instead, four
out of the eight bearings on car CB&Q 182544 failed in
the first 16,000 miles of use, and the last failure caused the
catastrophic derailment at Crescent City. There is no way
it can fairly be said that, as a matter of law, a condition
where 50% of the bearings fail within 1% of their ex-
pected service life was a condition ‘‘contemplated’’ by
plaintiff, and the Appellate Court’s reliance on Restate-
ment, Torts 2d § 402A, comment g, (Opinion, p. 6) in re-
versing the jury verdict as to Count I is obviously mis-
placed. Plaintiff was entitled to the jury verdict it received.
a) etd Seneca ,
Sd a ere PN nn
SARA he
Deh A eae aa Oe EY
—38a—
©. The Issue Of Assumption Of The Risk Was For The
Jury To Decide.
The issue of assumption of the risk, raised as a defense
to the strict liability count only,* again manifests the Ap-
pellate Court’s refusal to follow the Pedrick standard. The
Appellate Court stated at page 6:
‘At trial there was ample evidence that plaintiff knew
full well the risks and dangers of transporting freight
cars equipped with solid bearings. . .”’
But, ‘‘ample evidence’’ does not satisfy the Pedrick stand-
ard for overruling a jury finding. In a strict liability case.
assumption of the risk is an affirmative defense to be
pleaded and proved by defendant. Williams v. Brown Mfg.,
45 Ill.2d 418. By its verdict in favor of plaintiff on Count
I, the jury found that the defense had not been proved.
The Appellate Court was not free to overturn this verdict
simply because in its view there was ‘‘ample evidence’’
to support its conclusion.
Moreover, while the evidence arguably established that
plaintiff knew the car was equipped with plain bearings,
the evidence certainly did not establish that plaintiff knew
that the car had been completely dismantled and rebuilt in
1969 at facilities equipped to make roller bearing conver-
sions, nor did it establish that plaintiff knew that this par-
ticular car had suffered failures in three out of eight plain
bearings in its first 16,000 miles of use after being returned
to service in 1969. In Karabatsos v. Spivey Co., 49 Ill.App.
3d 317 (1st Dist. 1977) and Christopherson v. Hyster Co.,
* Assumption of the risk is not a defense to a negligence action
in Illinois, Barrett v. Fritz, 42 Ill.2d 529 (1969), and defendant
did not plead or argue the issue with respect to the negligence
count of the complaint (A. 24-26, 167).
—39a—
58 Ill.App.3d 791 (1st Dist. 1978), the Appellate Court af-
firmed jury verdicts in favor of plaintiffs in strict products
liability cases and held as a matter of law that an ap-
preciation of a general possibility of danger does not con-
stitute assumption of risk.
Furthermore, it is well settled that assumption of the
risk in a strict liability action is established only if plain-
tiff ‘‘voluntarily and unreasonably’’ encounters a known
risk, Williams v. Brown Mfg. Co., 45 Tll.2d 418, 423 (1970) ;
Doran v. Pullman Standard Car Mfg. Co., 45 Ill. App.3d
981 (1st Dist. 1977); Scott v. Dreis &d Krump Mfg. Co., 26
Tll.App.3d 971 (1st Dist. 1975). Although the interchange
agreement did not obligate Burlington to rebuild plain bear-
ing cars in 1969, it did obligate the plaintiff to accept a
car which meets the minimum requirements of these rules.
Refusing to accept a car meeting these minimum require-
ments would effectively put TP&W out of the freight
hauling business. But TP&W is not even free to go out of
the freight hauling business, for to do so would violate
the Interstate Commerce Act, which provides that, ‘‘It
shall be the duty of every common carrier subject to this
chapter to provide and furnish transportation .. .’’ 49
USC § 1 (4). Violation of the statute can subject the car-
rier to suit for damages, including attorney’s fees. 49 USC
§ 8.
A common carrier railroad can hardly be said to be ‘‘un-
reasonable’ in discharging its duty to furnish transporta-
tion under Federal law. If a railroad is forced to accept
a car which meets certain minimum rules and requirements,
having no standing to participate in the decision-making
process whereby the rules are drafted because it is not a
voting member of the organization promulgating the rules
(see discussion infra) it cannot be said as a matter of
:
:
;
£
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—40a—
law to be ‘‘voluntarily and unreasonably’’ encountering a
known risk. See Doran v. Pullman Standard Mfg. Co.,
supra, 45 Ill. App.3d at 989 and Scott v. Dreis & Krump
Mfg. Co., 26 Ill. App.3d at 990, both holding that job-
compulsory activity did not constitute assumption of the
risk.
At best, the assumption of risk defense, including the
alleged ‘‘voluntariness’’ and ‘‘unreasonableness”’ of plain-
tiff’s conduct, was for the jury to decide.
D. None Of The Authorities Cited By The Appellate Court
Justify Its Rejection Of The Jury’s Verdicts.
The Appellate Court cites three cases, one on the negli-
gence issue and two on the issue of strict liability.
To support its reversal of the negligence verdict, the
Appellate Court relies on Watts v. Bacon & Van Buskirk
Glass Co., 18 Tll.2d 226 (1959), affirming a directed verdict
in favor of a glass manufacturer who had installed plate
glass instead of tempered glass in a drug store door in
accordance with instructions from the owners of the store.
Not only was the glass company simply carrying out a
purchase order, but the evidence showed that ‘‘plate glass
installation was customary and usual while the use of
tempered glass was exceptional’’ (18 Ill.2d at 231). Ob-
viously, the instant case and Watts are wholly different
cases. Here, the only party who ordered or chose to re-
build car CB&Q 182544 with obsolete plain bearings was
the defendant. Conversion to roller bearings was not ex-
ceptional—it was the standard to which the entire rail-
road industry was attempting to comply! Defendant
showed not a single other instance where any railroad
in 1969 was sti!l installing plain bearings on any new
—4la—
or rebuilt cars. On the contrary, the evidence showed
that other railroads were converting their fleets to rol-
ler bearings as fast as was feasible. Defendant itself
had installed roller bearings exclusively on all its new
cars for the preceding 10 years. In short, the factors es-
tablishing the propriety of the directed verdict in Watts
establish the propriety of the jury verdict in the case at
bar.
With respect to the strict liability verdict, the Appel-
late Court cites St. Louis S.F. R.R. v. Armco Steel Corp.,
490 F.2d 367 (8th Cir. 1974) and Torres v. Southern Pacific
Transportation Co., 584 F.2d 900 (9th Cir. 1978). Armco
Steel was not a design case at all, but involved a claim
that defendant’s wheel contained a manufacturing defect
(excessive pitting). The expert opinion on this point was
in conflict, the trial court as fact finder found in favor of
the defendant, and the Court of Appeals affirmed the trial
court’s findings. If anything, Armc supports the submis-
sion of the instant case to the jury and affirmance of the
jury’s verdicts.
Torres involved an action by two trespassing illegal
aliens hitching a ride on defendant’s freight car who were
injured in a hot box derailment. Unlike the case at bar,
there was no evidence that any ‘‘unreasonable’’ conduct
on the part of the defendant was responsible for the hot
box (the type of bearings involved were not even identi-
fied), and the case was decided under Arizona law which
unlike Illinois does not apply the strict liability doctrine
to the lessor of a defective chattel (584 F.2d at 902). See,
Crowe v. Public Building Commission of Chicago, 74 Tll.2d
10; Galluccio v. Hertz Corp., 1 Tll.App.3d 272 (5th Dist.
1971); Knapp v. Hertz Corp., 59 Tl.App.3d 241 (1st Dist.
1978).
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—42a—
Il.
THE APPELLATE COURT’S OPINION DEPRIVES PLAIN.
TIFF OF ITS CONSTITUTIONAL RIGHT TO DUE PROCESS
AND EQUAL PROTECTION OF LAW.
The Appellate Court’s opinion, besides setting aside two
jury verdicts without any basis in law or fact for doing
so, also in essence holds that railroads, regardless of their
damage, are not entitled to pursue a remedy and cause
of action (strict liability in tort) that is available to all
other plaintiffs in this state. Such a result is in violation
of the due process and equal protection clauses of both
the Illinois and U. S. Constitutions. Ill. Const. Art. I, § 2;
U. S. Const., Amend. XIV.
Certainly, the fact that plaintiff is a business entity
and not an individual ‘‘member of the general public’’
(Appellate Court Opinion, p. 11) does not justify unequal
treatment or deprive it of its strict liability remedy. In-
deed, the posture of this case is not unlike that in Suvada
vy. White Motor Co., 32 Ill.2d 612 where this Court first
adopted the strict liability doctrine. In Suvada, a milk
service company was allowed to maintain a strict liability
in tort indemnity action against the manufacturer-seller
of the milk truck for amounts paid by the milk company in
settlement of personal injury suits brought by persons in-
jured in a collision between the milk truck and a bus. In
Liberty Mutual Insur. Co. v. Williams Machine and Tool
Co., 62 Ill.2d at 77 (1975), the subrogee insurer of a manu-
facturing corporation, who assembled and sold a defective
work platform, settled an injured workman’s claim and
then was allowed to obtain indemnity under the strict lia-
bility doctrine from the company that manufactured the
defective hydraulic pump installed on the platform. In
—43a—
Texaco v. McGrew Lumber Co., 117 ™ App.2d 351 (1st
Dist. 1969), the strict liability doctrine was expressly ap-
plied to two business entities in the same industry, the
court holding that one lumber company in the distributive
chain of a defective plank could obtain indemnity from
another lumber company which originally supplied the
plank (117 Ill.App.2d at 357-358).
The Appellate Court’s opinion also notes the existence
of the AAR Interchange Agreement governing the inter-
change of freight cars between railroads. The interchange
agreement, including the duty of the handling railroad to
inspect cars received in interchange, was introduced in
evidence and argued to the jury. Nothing in the AAR
agreement, however, even deals with, much less precludes,
one railroad’s right to recover under the strict liability
theory for damage incurred as a result of an unreason-
ably dangerous condition of a freight car leased into service
by another railroad. In fact, Article 17 of the AAR’s plan
of organization expressly provides that:
Article 17. Nothing this plan shall in any way pro-
hibit or restrain any member road from acting in-
dividually and independently of the Association or
of any and all other member roads with respect to
any of the matters covered hereby, and the right of
individual and independent action is expressly re-
served to each member road. (Supp. BE 50)
The interchange rules themselves were designed to pro-
vide a means for prompt payment for repairs to and
damage sustained by freight cars. (A. 561-562). Beyond
this point, the rules do not go. These rules do not attempt
to exonerate the car owner from any liability that may
result from a dangerous condition on a freight car, which
results in personal injuries or property damage sustained
PLE AL DE AE BIOS MY ER OO ORR 5 — . AUER 6 AD we
—44a—
by others. These rules do not attempt to preclude a ‘‘Han-
dling Company”’ (such as TP&W) from suing a car owner,
manufacturer or rebuilder (such as Burlington) for any
losses or damage sustained by ‘‘Handling Company’’ as
a result of a defective condition of a freight car which was
caused or contributed to by the car owner, manufacturer
or rebuilder.
Contrary to the instant Appellate Court decision, other
courts that have considered the AAR interchange agree-
ment have interpreted the agreement according to its terms
and held that it does not preclude common law actions for
damages between railroads under any theory. For example,
in Southern Cotton Oil Co. v. Atlantic C.L.R.R., 17 F.2d
411 (E.D. Va. 1927) the court held:
An examination of the rules from beginning to end
shows that the purpose of their adoption was, as stated
in the preface, to make the car owner chargeable with
repairs under certain given circumstances and the
railroad chargeable with repairs under certain other
given circumstances, and to provide a means of se-
curing the repairs and allocating the cost of same.
Elaborate provisions re contained in the rules with
relation to the character of equipment of the cars and
the method of handling the cars when defects are dis-
covered, whether loaded or unloaded, and like matters.
In other words, the intent and purpose of the rules
is to provide for the interchange of cars, and im no
sense do they relate to or were they intended to cover
the question of responsibility between the parties in
relation to the contents of the same or to alter or
modify the existing law with relation to such matters.
If, therefore, as the result of a failure to properly in-
spect a car in transit on its railroad or to handle the
same with due care, damage ensues, the railroad com-
pany will be liable. If, on the other hand, loss is sus-
tained by some hidden defect in the car, undiscoverable
—45a—
in the exercise of due care, the railroad company will
not be responsible. (17 F.2d 411, 413) (EF }
added.) Sayin cies
In Chicago, R.I.4P. R.R. v. Chicago and N.W. Ry., 280
F.2d 110 (8th Cir. 1960), the court held the Interchange
Rules did not prevent a railroad in possession of a freight
car from suing another railroad for contribution towards
the settlement of a claim for personal injuries suffered by
an employee of the railroad in possession. The court con-
cluded that the interchange rules:
i ;
‘. .. do not operate as a waiver of or a bar to any
claim for indemnity or contribution that the plaintiff
might have against the defendant arising out of the
mishap.’’ (280 F.2d 110, 113) (Emphasis added)
Most recently in Maine C. R.R. v. Bangor & A. R.R.,
melas Me. ......, 395 A.2d 1107 (1978), the Maine Supreme
Court reached the same conclusion in an action to con-
firm an arbitrators’ award for damages incurred by the
Maine Central whose train derailed because of a defect
in a Bangor & Aroostook freight car. Both railroads were
parties to the AAR Interchange Agreement at the time of
the occurrence. After holding at 1132 that the arbitrators
‘did nothing more than give their authoritative opinion
that initial responsibility for the damaged cars lay with
Maine Central’’, the Court went on to hold that ‘‘Maine
Central is entitled to pursue its legal remedies with re-
spect to the alleged products liability claim.’’ To the same
effect see Missouri Pacific v. Southern Pacific, 430 S.W.2d
900 (Tex. App. 1968), holding that one railroad’s con-
tractual duty to inspect a car did not prevent it from ob-
taining indemnity for amounts paid to an injured employee
from the railroad that actually supplied the defective car in
which the employee was injured.
—46a—
Different treatment of different classes is constitution-
ally permissible only where there is ‘‘a rational difference
of condition or situation existing in the persons or objects
upon which the classification rests’’, Davis v. Common-
wealth Edison Co., 61 Ill.2d 494, 497 (1975). Here neither
the AAR Agreement nor any other factor justifies treat-
ing railroads differently from any other plaintiff or de-
priving them of the remedy afforded under the strict lia-
bility doctrine.
PETITION FOR LEAVE TO APPEAL
I.
THE APPELLATE COURT’S OPINION CONFLICTS WITH
DECISIONS OF OTHER APPELLATE DISTRICTS IN THIS
STATE.
In addition to the conflicts with the decisions of this
Court and of other states, discussed in detail supra, this
decision of the Appellate Court conflicts with the other
Appellate Districts in two significant respects.
A. Illinois Decisions Consistently Hold That Contractual
Defenses To Strict Liability Actions Are Not Recog-
nized.
While no other Illinois decision has considered the im-
pact of the Interchange Agreement on a railroad’s right
to strict liability recovery, numerous Illinois decisions have
held that contractual defenses to strict liability are not
allowed.
‘‘[L]iability in a strict liability action is imposed in-
dependent of contractual considerations, and the one
—47a—
liable cannot contract away his own responsibility for
having placed a defective product into the mainstream
of public use. Sipari v. Villa Olivia Country Club, et
al., 63 Ill. App.3d 985, 990 (1978).
‘*{I]mplicit in the reasoning of the cases imposing
strict liability is that ‘liability is imposed by law
and the refusal to permit the manufacturer to define
the scope of its own responsibilities for defective prod-
ucts.’ ’’ Wright v. Massey Inc., 68 Ill. App.2d 70 (1968).
[T]he court in Suvada recognized that sound rea-
sons of public policy were responsible for the exten-
sion in a number of jurisdictions of strict liability
to manufacturers of products whose defective condi-
tion makes them unreasonably dangerous to the user.
To allow the dealer to limit, by contract, his tort lia-
bility for such defects in [a product] to the repair or
replacement of defective parts would defeat those
reasons.’’ Haley v. Merit Chevrolet, Inc., 67 Ill. App.2d
19 (1966).
‘Likewise the Restatement of Torts 2d §402(a) comment
m expressly provides:
The consumer’s cause of action ... is not affected by
any disclaimer or other agreement, whether it be be-
tween the seller and his immediate buyer, or attached
to and accompanying the product into the consumer’s
hands. (Emphasis added)
In short, even if the AAR Rules attempted to relieve
Burlington, as manufacturer and distributor of a defec-
tive and dangerous railroad car, of its duties and liabilities
under Illinois law (which the Rules do not even purport
to do), such an attempt would be contrary to the public
policy of this state. The Appellate Court’s attempt to jus-
tify its result on the basis of these Rules should therefore
be reversed as a matter of public policy.
—48a—
B. This Decision Creates A Direct Conflict Between The
Third And Fifth Districts.
The Appellate Court, at p. 11, stated:
‘‘'T jhe interchange of railroad cars is a highly spe-
cialized industry use which is too dissimilar to the
commercial distribution of a product to warrant ap-
plication of the doctrine of strict liability.’’
The sole authority cited by the Appellate Court for this
proposition is Torres v. Southern Pacific Transp. Co., 584
F.2d 900 (9th Cir. 1978), discussed supra, p. 26, a case
bearing little or no factual resemblance to the instant case.
The Appellate Court of Illinois, Fifth District, very re-
cently decided Rucker v. Norfolk & Western Ry,., ...... Til.
App.3d —...., 381 N.E.2d 715 (1978), holding that a railroad
car manufacturer is strictly liable to one injured by its
defectively-designed railroad car, even though the car had
been interchanged to other railroads and was assertedly
manufactured in conformance with federally prescribed
design standards and specifications. The Rucker holding
is consistent with the overwhelming weight of prior Illinois
authority in this regard, as discussed at length supra.
It is respectfully submitted that this conflict between the
Third and Fifth Districts should be resolved by this Court.
—49a—
CONCLUSION
The Appellate Court has reversed two jury verdicts, each
separate and independent of the other, and has done so
without citing Pedrick, applying the Pedrick test, or dis-
cussing or analyzing the plaintiff’s evidence. The petition
for appeal as a matter of right is well made and should
be allowed. In the alternative, the petition for leave to
appeal should be granted.
Respectfully submitted,
LORD, BISSELL & BROOK
115 South LaSalle Street
Chicago, Illinois 60603
CASSIDY, CASSIDY, MU/ZLLER & PRICE
800 Lehmann Building
Peoria, Illinois 61602
Attorneys for Petitioner,
Toledo, Peoria & Western Railroad
CORNELIUS P. CALLAHAN
ROBERT P. SCHMIDT
HUGH C. GRIFFIN
Of Counsel.
—50a—
APPENDIX 5
Illinois Supreme Court Denial of
Petition for Leave to Appeal
ILLINOIS SUPREME COURT
CLELL L. WOODS, CLERK
Supreme Court Building
Springfield, Il]. 62706
(217) 782-2035
May 31, 1979
Mr. Cornelius P. Callahan
Attorney at Law
Lord, Bissell & Brook
115 South LaSalle Street
Room 3200
Chicago, IL 60603
No. 51806—Toledo, Peoria & Western Railroad, a corp.,
petitioner, vs. Burlington Northern, Inc., a
corp., respondent. Leave to appeal, Appellate
Court, Third District.
The Supreme Court today denied the petition for leave
to appeal in the above entitled cause.
Very truly yours,
/s/ Clell L. Woods
Clerk of the Supreme Court
—5la—
APPENDIX 6
In the
Supreme Court of Plinois
TOLEDO, PEORIA & WESTERN RAILROAD, a corporation,
Plaintiff-Petitioner,
No. 51806 va.
BURLINGTON NORTHERN INC., a corporation,
Defendant-Respondent.
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Petition for Appeal as a Matter of Right from the Appellate
Court of Illinois, Third District.
There Heard on Appeal from the Circuit Court of Peoria County.
Honorable Albert Pucci, Judge Presiding.
Motion for Ruling on Petition for
Appeal as a Matter of Right
Now comes plaintiff-petitioner, Toledo, Peoria and West-
ern Railroad Company, by its attorneys, Lord, Bissell &
Brook, and moves the court to rule on and grant the Peti-
tion for Appeal as a matter of Right which has heretofore
been filed in this court. The order of the court of May 31,
1979, deals only with the alternative petition for leave
to appeal.
In the appeal as a matter of right, plaintiff demonstrated
that the Appellate Court summarily set aside two separate
—52a—
and independent $1,787,491.05 jury verdicts which had been
returned after some three weeks of trial before a jury in
Peoria, Illinois. This result wholly abrogated plaintiff’s
federal and state constitutional rights of trial by jury and
constituted the basis for the Petition for Appeal as a Mat-
ter of Right. The order disposing of the alternative peti-
tion for leave to appeal does not even deal with this funda-
mental constitutional question raised for the first time by
the Appellate Court’s ruling.
The Appellate Court justified its reversal of the jury
verdicts on the grounds that there was ‘‘ample evidence’’
by which the jury couid have found for the defendant in-
stead of the plaintiff. But there is no ‘‘ample evidence’’
rule in this State which entitled the Appellate Court to
substitute its view of the facts for that of the jury. Rather,
the rule in this State is enunciated in the Pedrick case, and
the Appellate Court not only refused to follow that rule
but demonstrated its disregard for it by failing even to
cite Pedrick in its opinion.
WHEREFORE, plaintiff moves the court to grant its
Appeal as a Matter of Right.
LORD, BISSELL & BROOK
/s/ Lord, Bissell & Brook
Attorneys for Plaintiff-Petitioner,
Toledo, Peoria and Western Railroad
CORNELIUS P. CALLAHAN
LORD, BISSELL & BROOK
115 South LaSalle Street
Chicago, Illinois 60603
(312) 443-0409
—53a—
APPENDIX 7
SeeanEEEEEEEEiEeEe
Illinois Supreme Court
Denial of Motion for Ruling
State of Illinois
office of
CLERK OF THE SUPREME COURT
Springfield
62706
June 27, 1979
Lord, Bissell & Brook
Attorneys at Law
115 South LaSalle Street
Chicago, IL 60603
In re: Toledo, Peoria & Western Railroad, etc., peti-
tioner, vs. Burlington Northern, Inc., ete., re-
spondent. No. 51806
Gentlemen:
The Supreme Court today made the following announce-
ment concerning the above entitled cause:
Motion by petitioner suggesting that Justice Thomas
E. Kluezynski recuse himself from consideration of this
case. No action is taken by the Court as a whole, since
none is requested and action by the Court would not
be appropriate. Kluczynski, J. took no part.
The motion by petitioner for a ruling on petition for
appeal as a matter of right is denied. Kluczynski, J.
took no part. ‘aide
—54a—
The motion by petitioner for stay of mandate pending
disposition of motion for a ruling on petition for ap-
peal as a matter of right is denied. Kluczynski, J. took
no part.
Very truly yours,
/s/ Clell L. Woods
Clerk of the Supreme Court
CLW :jae
ec :Cassidy, Cassidy, Mueller
& Price
Davis & Morgan
Burlington Northern Inc.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.