The Daily Journal
Wheaton, Ill.
Friday, February 9, 1990
Woman hit by train awarded $3.5 million
By John Asplund
Journal staff
A Wheaton woman left incapacitated after she drove around a railroad crossing gate and was hit by a train in 1987 will receive at least $3.5 million from Chicago & NorthWestern Transportation Company.
Loretta Conser, 48, sustained brain damage and is confined to a wheelchair at the DuPage Convalescent Center in Wheaton, said her attorney Jerome McSherry.
Conser will receive $750,000 now and $6,250 a month for 20 years. If she dies within the next 20 years, her heirs will receive the monthly payments. If Conser lives longer than 20 years, she will receive the payments until she is 83.
On Feb. 9, 1987, Conser drove around lowered Chicago & NorthWestern Railroad crossing gates on Washington Street in Wheaton. She assumed they were down because a railroad crew was visible working on the tracks about two blocks away, McSherry said.
She only looked down the track in the direction of the workers, and her car was hit by a train traveling from the other direction, he said.
If the case had gone to trial McSherry said he was prepared to argue the gates had been down for more than 10 minutes without a train crossing the road – which is a violation of state law.
Also, the work crew’s presence and a history of gates in the area being lowered without trains passing contributed to the accident, he said.
Robert Szczecinski, district claim agent for the railroad, agreed train equipment and workers nearby could have caused Conser to assume no train was coming.
The settlement, however, will not set a precedent for lawsuits by people who disregard crossing signals, he said, because in such suits a judge or jury must find the railroad 51 percent negligent.
If crossing gates and lights are operational and people choose to cross, they would likely be held liable, Szczecinski said.
McSherry said the case may lead to railroads having to provide more warning than just lowered gates when unusual circumstances exist.
It may change railroad officials’ reasoning that “they are totally without fault if the gates are down” he said.
The railroad reached the settlement with the woman rather than risk a trial in Cook County Circuit Court, where juries are prone to award large damage payments, both attorneys said.
Chicago & NorthWestern tried to have the case heard in DuPage Circuit Court because the accident occurred in Wheaton, but McSherry said he filed in Cook because the railroad company is based in Chicago.
Jury settlements in Cook County often are three to four times higher than in DuPage County, he said.