UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CHRISTINE M. JONES, individually and )

SPECIAL ADMINISTRATOR OF THE )

ESTATE OF TIMOTHY JONES, )

)

Plaintiff, )

)

v. ) Case No. 1:12–cv–00771

)

UNION PACIFIC RAILROAD COMPANY, )

)

Defendant. )

DEFENDANT UNION PACIFIC RAILROAD COMPANY’S MOTION

FOR JUDGMENT AS A MATTER OF LAW

Pursuant to Rule 50 of the Federal Rules of Civil Procedure, Defendant Union Pacific 

Railroad Company (“Union Pacific”) respectfully moves for judgment as a matter of law. 

INTRODUCTION

Plaintiff has failed to meet her burden to establish that Union Pacific did anything to 

cause or contribute to cause the death of Timothy Jones (Jones). To the contrary, the facts 

establish that Jones’ death was the result of his own conduct, and not that of Union Pacific or its 

employee, Steven Pignato (Pignato). Union Pacific requests that this Court grant is motion for 

judgment as a matter of law because (1) Jones’ conduct was the sole cause of this accident, (2) 

Jones was contributorily negligent, (3) there is no evidence that Union Pacific had any notice of 

a problem with the crossing warning system before the accident occurred, and (4) there is 

insufficient evidence to establish that Pignato operated the train negligently. 

STANDARD

Federal Rule of Civil Procedure 50(a)(1) provides as follows:
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If a party has been fully heard on an issue during a jury trial and the court finds 

that a reasonable jury would not have a legally sufficient evidentiary basis to find 

for the party on that issue, the court may:

(A) resolve the issue against the party; and

(B) grant a motion for judgment as a matter of law against the party on a claim 

or defense that, under the controlling law, can be maintained or defeated only 

with a favorable finding on that issue. 

Fed.R.Civ.P. 50(a)(1). In other words, the evidence must provide a sufficient basis from which 

the jury could reasonably reach a verdict “without speculation or drawing unreasonable 

inferences which conflict with the undisputed facts.” Maltby v. Winston, 36 F.3d 548, 558 (7th

Cir. 1994). No such evidence has been presented against Union Pacific. 

ARGUMENT

I. PLAINTIFF HAS ESTABLISHED THAT JONES’CONDUCT WAS THE 

SOLE CAUSE OF THIS ACCIDENT.

The parties in this case agreed to certain facts that were presented to the jury as 

uncontested. Dkt. No. 220 (Final Pretrial Order). Included in those facts is that when Jones was 

in the left turn late at River and Miner “the traffic control light was red and the three no left turn 

signals were activated, prohibiting a left hand turn.” Id. In addition, the parties agree that 

although “[t]he three no left turn signals remained illuminated even after the traffic signal light 

allowing for thru traffic turned green[,] Mr. Jones made a left hand turn and proceeded into the 

railroad crossing.” Id. This evidence undisputedly establishes that Jones’ accident was caused by 

his failure to obey the traffic signals at the River Road Crossing (the Crossing). By making a left 

turn, Jones disobeyed the law and put himself in the path of the train. The no left turn signals 

were not an invitation for Jones to make the left turn and stop before the tracks—he was required 

to comply with the law and remain in the left turn lane until given permission to enter the 
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crossing. Simply put, there is no question that if Jones had obeyed the no left turn signals, and 

remained stopped in the left turn lane, this accident would not have occurred. 

Although proximate cause is typically a question of fact, “it becomes a question of law 

where the undisputed facts are such that no reasonable person could infer that a defendant’s acts 

were the cause of a plaintiff’s injuries.” Sheahan v. Ne. Ill. Reg’l Commuter R.R. Corp., 212 Ill. 

App. 3d 732, 737, 571 N.E.2d 796, 799 (1st Dist. 1991). Where a decedent fails to heed the 

active warning signals that were properly given, then it is appropriate to find that his actions 

were the sole proximate cause of the accident. Id. at 737, 799.

In Sheahan, the decedent was killed when he drove in front of an oncoming train, 

disobeying flashing red crossing lights. Id. at 733–34. The trial court granted summary judgment 

on behalf of the defendant, which argued that the decedent’s own actions were the proximate 

cause of the accident. Id. at 734–35. The appellate court affirmed, finding that “plaintiff’s failure 

to heed the warnings given was the sole and proximate cause of the accident.” Id. at 738, 800.

The same reasoning applied in Nunez v. BNSF Ry. Co., 936 F. Supp. 2d 969 (C.D. Ill. 

2012), where the decedent also failed to heed the warnings of the oncoming train. Id. at 974. 

There, the decedent found her car stalled on the railroad tracks, before a train began to approach. 

When the train’s approach activated the crossing warning system, the decedent failed to exit her 

car and move to safety. Id. at 980. Based on this, the Court found that “in light of the fact that the 

evidence shows she had more than [20 seconds], any legal causation argument fails,” and 

summary judgment in favor of the railroad was appropriate. Id.

Given Jones’ failure to comply with the no left turn signals, and his decision to place 

himself into harm’s way, no reasonable person could find that the accident occurred because of 

the conduct of Union Pacific. Therefore, Defendant is entitled to judgment as a matter of law.
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II. UNION PACIFIC IS ENTITLED TO JUDGMENT AS A MATTER OF LAW 

ON PLAINTIFF’S CONTRIBUTORY NEGLIGENCE.

The evidence in this case establishes that after Jones disobeyed the no left turn lights, he 

proceeded at a steady speed across all three tracks and directly in front of the approaching train. 

There is no evidence that he attempted to swerve or avoid the accident. Further, the video of the 

accident and the downloads from the crossing warning system establish that the crossing warning 

system was operating as intended and in compliance with all applicable rules and regulations. 

Although Hank Kolak (Kolak) testified that he did not see the gates down before the accident, 

such testimony should be disregarded as his story “is blatantly contradicted by the record, so that 

no reasonable jury [can] believe it.” Scott v. Harris, 550 U.S. 372, 380 (2007); see also Williams 

v. Brooks, 809 F.2d 936 (7th Cir. 2016) (“When the relevant evidence includes a videotape of the 

relevant events, the Court should not adopt the nonmoving party’s version of the events when 

that version is blatantly contradicted by the videotape.”) As the video clearly establishes that the 

gates were down and the lights were flashing, and there is no evidence that this video was 

altered, it is clear that Kolak is simply incorrect. Because the evidence establishes that Jones not 

only disobeyed the no left turn signal, he also disobeyed the crossing warning system, there can 

be no question that Jones’ actions contributed to this accident. 

In circumventing the crossing warning system, Jones violated a statute designed for the 

protection of human life and property, and “[s]uch a violation is prima facie evidence of 

negligence.” Hamilton v. Atchison, Topeka & Santa Fe Ry. Co., 175 Ill. App. 3d 758, 760, 530 

N.E.2d 268, 269 (Ill. App. Ct. 1988). Specifically, Jones’ failure to stop within 50 feet but not 

less than 15 feet from the nearest rail and not proceed until it was safe to do so was a clear 

violation of Section 11–1201 of the Illinois Vehicle Code, 625 ILCS 5/11–1201, and prima facie

evidence of his own negligence. This Section provides, in pertinent part:
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(a) Whenever any person driving a vehicle approaches a railroad grade crossing 

where the driver is not always required to stop, the person must exercise due care 

and caution as the existence of a railroad track across a highway is a warning of 

danger, and under any of the circumstances stated in this Section, the driver shall 

stop within 50 feet but not less than 15 feet from the nearest rail of the railroad 

and shall not proceed until the tracks are clear and he or she can do so safely. The 

foregoing requirements shall apply when:

1. A clearly visible electric or mechanical signal device gives warning of the 

immediate approach of a railroad train or railroad track equipment;

2. A crossing gate is lowered or a human flagman gives or continues to give a 

signal of the approach or passage of a railroad train or railroad track equipment;

3. A railroad train approaching a highway crossing emits a warning signal and 

such railroad train, by reason of its speed or nearness to such crossing, is an 

immediate hazard; 

4. An approaching railroad train is plainly visible and is in hazardous proximity to 

such crossing; 

5. A railroad train is approaching so closely that an immediate hazard is created. 

* * *

(b) No person shall drive any vehicle through, around or under any crossing gate 

or barrier at a railroad crossing while such gate or barrier is closed or is being 

opened or closed.

* * *

625 ILCS 5/11-1201 (emphasis added). 

Illinois courts “have consistently recognized that railroad crossings are dangerous places 

and that in crossing them a person must exercise a degree of care commensurate with the danger 

to be anticipated. A person traversing a railroad crossing has a duty to look and listen for an 

approaching train.” Hamilton, 175 Ill.App.3d at 269–70. Where the driver ignores the warning 

signals and proceeds across the tracks, his own conduct is the sole proximate cause of the 

resulting accident, and judgment is proper in favor of the railroad. Id. at 270. In the present case, 

Plaintiff’s evidence demonstrates that the Jones violated multiple subsections of 5/11–1201, and 
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judgment as a matter of law is proper in favor of Union Pacific’ on Plaintiff’s contributory 

negligence. 

Furthermore, even if the crossing gate was malfunctioning, a motorist has no right to rely 

solely on the fact that the crossing signaling device is not operating as an indication of safety and 

he is guilty of contributory negligence as a matter of law in crossing the railroad track without 

taking further precautions for his safety, such as looking and listening for the presence of trains.

Groesch v. Gulf, M. & O. R. Co., 241 F.2d 698, 701 (7th Cir. 1957) (applying Illinois law; 

directed verdict in favor of the railroad affirmed); Davis v Chicago, R. I. & P. R. Co., 172 F Supp 

752 (S.D.Ill. 1959), affd 273 F.2d 434 (7th Cir. 1960) (applying Illinois law; plaintiff could not 

rely on malfunctioning signals; plaintiff was guilty of contributory negligence and judgment 

should be entered in favor of the railroad notwithstanding the verdict). Even if this Court were to 

find that there is evidence that the crossing warning system was not operating, which Union 

Pacific denies, it is clear that Jones failed to take any further precautions for his safety. Thus, 

Union Pacific is entitled to judgment as a matter of law on Jones’ contributory negligence.

III. PLAINTIFF HAS NOT PRESENTED LEGALLY SUFFICIENT EVIDENCE 

TO PROVE NOTICE/FORESEEABILITY.

Plaintiff presented one piece of evidence in an attempt to establish that the crossing 

warning system was not operating at the time of the accident: Kolak’s testimony. She has not 

presented any evidence, however, that Union Pacific had any notice that there was a problem 

with the crossing warning system. To the contrary, the evidence has been that there was no 

exception taken to the operation of the crossing warning system in the year prior to this accident. 

Therefore, judgment as a matter of law is proper in favor of Union Pacific because Plaintiff has 

not satisfied the element of foreseeability. As this is not a case of strict liability, Plaintiff’s failure 
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to establish that Union Pacific was on notice of any problem with the crossing warning device is 

fatal to her claim. 

In a crossing accident case, an Illinois appellate court has held that “even if [the jury] 

were to find that the signals failed, that fact alone would not constitute negligence on the part of 

defendant under the prevailing rule in this state, for it must appear that defendant had actual or 

constructive notice of the defect, and no such evidence was submitted in this case.” Applegate v. 

Chicago & N. W. Ry. Co., 334 Ill. App. 141, 151, 78 N.E.2d 793, 798 (Ill. App. Ct. 1948)

(emphasis added); see also Hamilton v. Atchison, Topeka & Santa Fe Ry. Co., 175 Ill. App. 3d 

758, 760, 530 N.E.2d 268, 269 (Ill. App. Ct. 1988) (Affirming trial court’s granting of summary 

judgment on behalf of the railroad where there was no evidence that the railroad had notice of 

the “alleged defects in the crossing.”). This standard applies not only in Illinois, but also in other 

states and jurisdictions addressing the same issue. Robinson v. Missouri Pac. R.R. Co., 16 F.3d 

1083 (10th Cir. 1994); Robin Express Transfer, Inc. v. Canton R.R. Co., 26 Md. App. 321, 338 

A.2d 335 (1975); Goldscheiter v. Baltimore & O.R. Co., 153 Pa. Super. 141, 33 A.2d 477 

(1943); Teague v. St. Louis Southwestern Ry. Co., 36 F.2d 217 (5th Cir. 1929). Legal treatises 

have said the same: “in order to charge a railroad company with negligence based on the failure 

of a crossing signaling device to operate, it must be shown that the company had notice, actual or 

constructive, of such failure to operate and had an opportunity to correct the situation.” 90 

A.L.R.2d 350, § 5 (collecting cases).

Plaintiff has not provided any evidence that Union Pacific had prior notice of any 

problem with the gate malfunctioning or needing maintenance. Therefore, even if one were to 

believe that there was a malfunction with the crossing warning system—which Union Pacific 
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denies—that malfunction was not foreseeable, Plaintiff has failed to meet her burden, and Union 

Pacific is entitled to judgment as a matter of law.

IV. PLAINTIFF HAS FAILED TO PRESENT EVIDENCE OF PIGNATO’S 

NEGLIGENCE.

Plaintiff has failed to present any evidence that Pignato’s operation of the train on the 

date and at the time of the accident was negligent or in any way caused the accident. Plaintiff’s 

claim with respect to the operation of the train presents three issues: (1) whether Pignato failed to 

maintain a proper lookout as he approached the crossing, (2) whether his failure to sound his 

horn constituted negligence, (3) whether Pignato had any opportunity to take any action to 

prevent this accident from occurring. 

Plaintiff has failed to establish that Pignato failed to maintain a proper lookout as he 

approached the crossing. Pignato testified that he complied with his responsibilities as he 

approached the crossing by visualizing the crossing and verifying that the crossing warning 

system was operating. Having confirmed that the crossing warning system was operating, he was 

entitled to presume that any car would heed the warnings and not enter the crossing until given 

the permission to do so. Rakers v. Southern Ry. Co., 8 Ill. App. 3d 877, 887–88, 290 N.E.2d 421, 

429 (5th Dist. 1972) (An engineer is “allowed to presume that the vehicle will yield the right of 

way until such time as it becomes apparent that the vehicle has not heard or will not heed the 

signal.”); see also Sheahan, 212 Ill. App. 3d at 737, 571 N.E.2d at 799; and see Rasmusen v. 

White, 970 F. Supp. 2d 807, 823 (7th Cir. 2013) (An engineer has no duty to stop his train “until 

it [becomes] apparent that the plaintiff had not heard or would not heed the signal.”); see also 

Espinoza, 165 Ill.2d at 115, 649 N.E.2d at 1326–27. That Pignato did not see Jones’ car until just 

before the accident occurred is not evidence of negligence, because it does not establish that he 

failed to maintain a proper lookout. Indeed, as Plaintiff’s own train handling expert, Paul Byrnes
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(Byrnes), testified, an engineer has multiple tasks as he approaches a crossing, including setting 

his train up for a station stop, looking at both sides of the crossing, and monitoring all of his 

gauges. There is no evidence in this case to establish that Pignato failed to maintain a proper 

lookout, and Union Pacific is therefore entitled to judgment as a matter of law on that issue.

Similarly, there is no evidence that Pignato’s failure to sound his horn prior to this 

accident occurring was negligent. There are four undisputed facts that are relevant to the 

question of whether Pignato’s failure to sound his horn is evidence of negligence: (1) this 

crossing is in a quiet zone where routine sounding of horns is prohibited, (2) an engineer may 

sound his horn if an emergency situation arises, (3) Pignato did not see Jones’ car until just 

before the accident occurred, and (4) rather than sound his horn, Pignato placed the train into 

emergency in an attempt to stop the train. These facts establish that Pignato’s failure to sound the 

horn is not evidence of negligence. Further, Byrnes agreed that if an emergency situation arose 

because a car was in the crossing, Pignato’s responsibility was first to attempt to stop the train as 

quickly as he could, and then to provide as much audible warning as possible. As Pignato placed 

the train into emergency just before the accident occurred, he complied with his duty as an 

engineer. Therefore, Union Pacific is entitled to judgment as a matter of law.

Finally, Plaintiff has failed to present any evidence that Pignato could have prevented this 

accident from occurring. The facts in this case establish that Pignato verified that the crossing 

warning system was operating before he reached the crossing, and he therefore had no reason to 

stop the train before he reached the crossing. In addition, the facts establish that once he saw 

Jones’ car, he had no opportunity to stop the train before the collision occurred. Indeed, both 

Byrnes and Loumiet admitted that once Pignato saw Jones’ car, he had no ability to stop his 

train. As the engineer cannot be deemed to have been negligent if he “could not have prevented 
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the accident after realizing that a vehicle is not going to yield to the train,” Union Pacific is 

entitled to judgment as a matter of law on this issue. Rasmusen, 970 F. Supp. 2d at 825.

WHEREFORE, for the foregoing reasons, Defendant Union Pacific Railroad Company 

respectfully requests an Order granting judgment as a matter of law in its favor, and for further 

relief deemed just and proper.

Dated: September 26, 2016 Respectfully submitted,

By: s/Elizabeth A. Graham

One of the Attorneys for

Union Pacific Railroad Company 

Elizabeth A. Graham, #06292904

Union Pacific Railroad Company

101 North Wacker Drive, Room 1920

Chicago, IL 60606

Tel: 312.777.2056

Fax: 877.213.4433

eashansk@up.com

Thomas E. Jones, #03123230

Thompson Coburn LLP

525 West Main Street

P.O. Box 750

Belleville, Illinois 62222–0750

Tel: 618.277.4700

Fax: 618.236.3434

tjones@thompsoncoburn.com

Attorneys for Union Pacific Railroad Company
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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been served 

via the Court’s ECF system on all counsel of record in accordance with the Federal Rules of 

Civil Procedure on September 26, 2016.

By: s/ Elizabeth A. Graham