text:
    MAGNA BANK OF McLEAN COUNTY, f/n/a McLean County Bank, Adm’r of the Estate of Robin A. LeFebvre, a/k/a Robin A. Burns, Deceased, Plaintiff-Appellee, v. RICHARD B. OGILVIE, as Trustee of the Property of Chicago, Milwaukee, St. Paul, and Pacific Railroad Company, et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1—91—0649

      C. Roy Peterson, of Lord, Bissell & Brook, of Chicago, for appellants.
    Robert J. Lenz and David W. Butler, both of Bloomington, for appellee.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Defendants appeal the verdict in a wrongful death action in which the deceased, Robin A. LeFebvre, was struck and killed by defendant Chicago, Milwaukee, St. Paul, & Pacific Railroad Company’s (Milwaukee Road’s) freight train at a pedestrian crossing in Glenview which was operated by defendant National Railroad Passenger Corporation (Amtrak), and where the jury reduced the award for decedent’s contributory negligence by 30% and awarded $914,680 in damages to plaintiff.

Defendants contend on appeal that: (1) the jury’s verdict is against the manifest weight of the evidence because decedent’s failure to exercise due care for her own safety was the sole proximate cause of the accident; (2) the defendants did not have a duty to operate the train at a lesser speed or to install gates, flashing lights and signs at the crossing; (3) the court erred in refusing defendants’ tendered instruction regarding the duty of an individual at a railroad crossing; (4) the court erred in prohibiting the impeachment of plaintiff’s railroad accident expert, Michael Massie; (5) plaintiff’s violation of defendant’s motion in limine regarding testimony on safeguards at other crossings was error; and (6) it was error to allow Dr. Julien Christensen, plaintiff’s human factors expert, to give reconstruction testimony and to testify as an expert on the safety features of the crossing.

We affirm the jury’s findings.

On October 12, 1983, Robin A. LeFebvre, who lived in South Carolina, was visiting friends in Winnetka before attending a business conference in Milwaukee. Intending to take an Amtrak train, she was driven to the Glenview station by Nicholas Kershaw, who parked in a lot directly west of the railroad tracks. Decedent crossed the tracks on a wooden walkway level to the tracks to purchase a ticket in the station building which was east of the two sets of north-to-south tracks.

After purchasing a ticket, decedent exited the station building, intending to recross the tracks to retrieve her luggage from the Kershaw car. It was raining, with the wind blowing, and she had her umbrella open, angled north-northwest. As the defendant’s nonstop freight train approached from the north, decedent walked west across the tracks, apparently failing to look in the direction of the oncoming train, and was struck and killed.

Plaintiff’s amended complaint charged both defendants with (1) failure to provide warning lights, bells or a gate at the depot to alert pedestrians of the danger of oncoming trains; (2) failure to announce to pedestrians the approach of such trains; (3) failure to post signs at the depot that trains pass over the crossing at high speeds without stopping; and (4) failure to provide safe pedestrian access from the parking lot to the station building.

The complaint included three other counts as to the Milwaukee Road, the operator of the freight train: (1) that it operated its train at a speed greater than was warranted under the circumstances; (2) that it failed to blow the train whistle prior to passing the station at a point sufficient to provide a warning to decedent; and (3) that it failed to keep a proper lookout for pedestrians.

At trial, the evidence established that the train consisted .of 2 engines, 20 cars and a caboose; that the timetable speed for freight trains through Glenview was 50 miles per hour; that the train was traveling approximately 48 miles per hour as it approached the Glen-view station that day; that the train was equipped with a bell and a whistle; and that the bell sounded prior to the incident but the whistle did not.

The lead engine was occupied by a brakeman and an engineer. The brakeman testified that when the train was approximately 1,800 feet from the station, he first saw the decedent standing on the platform. He stated that after she opened her umbrella near the door of the station building, he never took his eyes off of her and watched her walk toward the crosswalk. As she approached the “danger zone” painted on the platform, the brakeman told the engineer that he saw a woman who he did not believe was going to stop, and that he thought she might cross in front of the train. The brakeman testified that he watched the decedent cross the eastern set of tracks and continue walking on the crosswalk toward the tracks on which the freight train was traveling. When the train was approximately 15 railcar lengths from the decedent, the engineer reduced air in order to set the brakes. The brakeman testified that decedent was approximately three railcar lengths from the train when she stepped onto the crosswalk in front of it and the engineer applied the brakes and gave a short blast of the whistle.

Because the engineer was deceased by the time of trial, portions of his discovery deposition were read into evidence. The engineer stated that he only glimpsed decedent as she exited the building and never saw her walk toward the train. He stated that the train was traveling at 48 miles per hour and that he did not sound the whistle or apply the brakes prior to striking decedent.

The Amtrak ticket agent inside the Glenview station at the time of the accident testified that he announced on the public address system that a nonstop freight train was coming through the station. The agent stated that he made the announcement prior to waiting on decedent.

However, two passengers who entered the station building after decedent did not recall hearing an announcement regarding a passing train, either while they were in the building or outside as they approached the building; nor did they see the agent make an announcement. They stated that while they were aware of a freight train passing through the premises because of the loud rumbling the train made, they never heard a whistle before it passed.

Nicholas Kershaw testified that as decedent walked slowly from the station, with her umbrella up against the rain, she never showed any awareness of the approaching train. Mr. Kershaw stated that as he sat in his car in the parking lot, he watched her cross one set of tracks and start across the second set when he saw the locomotive come into the crosswalk and heard a short whistle at the same time. He never heard an announcement over the loudspeaker warning of an approaching train.

Dr. Julien Christensen testified on plaintiff’s behalf as a human factors expert. Upon evaluating the safety features at the station, he stated that the wooden plank crosswalk was hazardous because a pedestrian would be concerned about slipping and falling and being hit by a train. Dr. Christensen found that the condition of the crosswalk, with gaps between the worn and uneven planks and the eight-inch downward slant on each end, would occupy much of a pedestrian’s attention, especially on a rainy, windy day.

Dr. Christensen also expressed the opinion that the train and the station provided inadequate warnings to decedent of the approaching train, and that 48 miles per hour is not a safe speed when traveling through a passenger station.

Michael Massie testified for plaintiff as a railroad accident investigator, stating that the warning system provided decedent was inadequate. He opined that the train’s whistle should have been sounded and the brakes applied prior to striking decedent. He too testified that 48 miles per hour was not a safe speed to travel through a passenger station and that warning devices should have been installed at the crosswalk itself.

Defendant first argues that the jury’s verdict is against the manifest weight of the evidence because decedent’s failure to exercise due care for her own safety was the sole proximate cause of the accident. Defendant contends that decedent knew of the existence of the crossing since she had crossed over the tracks to reach the station building; she had an opportunity to see the train had she looked; she had an opportunity to hear the train, its bell and its whistle; an announcement was made over the loudspeaker that a train was coming through; and she failed to look in either direction before stepping onto the crosswalk.

Defendants argue there was no evidence that the Milwaukee Road operated the train at an excessive speed, failed to give an audible warning as the train approached the station, or failed to maintain a proper lookout. Defendants further contend that the absence of crossing gates or flashing lights is not determinative because they are simply other methods of notifying pedestrians of approaching trains. Defendants state that there was evidence in the record that the bell was rung, the whistle was sounded, an announcement was made, and such notice is sufficient.

Defendant’s theory, however, ignores the brakeman’s testimony that he watched decedent from the time she left the depot until she was struck, a distance of approximately 1,800 feet. Although he advised the engineer that he thought she would not stop, the whistle was never sounded until the point of impact. In addition, the brakes were never set until 15 car lengths away from decedent and applied only three car lengths away when decedent stepped upon the tracks. Moreover, the announcement of the imminent arrival of the train over the public address system is certainly disputed. Together, these failures compound to raise a question as to the adequacy of a warning to decedent of the train’s approach.

In Illinois, it is well settled that a railroad has a common law duty with respect to crossings to provide adequate warning to travelers that a train is approaching. Sheahan v. Northeast Illinois Regional Commuter R.R. Corp. (1991), 212 Ill. App. 3d 732, 735, 571 N.E.2d 796; Bassett v. Burlington Northern R.R. Co. (1985), 131 Ill. App. 3d 807, 811, 476 N.E.2d 31; Stromquist v. Burlington Northern, Inc. (1983), 112 Ill. App. 3d 37, 41, 444 N.E.2d 1113; Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1970), 121 Ill. App. 2d 445, 455, 257 N.E.2d 216; Anderson v. Chicago Central & Pacific R.R. Co. (N.D. Ill. 1991), 771 F. Supp 227, 229.

When a train is approaching a crossing, the railroad has a duty to keep a lookout, and if a pedestrian is observed on or near the tracks in a place of danger, there is a duty to give that person sufficient warning of an approaching train. Higgins v. Baltimore & Ohio R.R. Co. (1958), 16 Ill. App. 2d 227, 230, 147 N.E.2d 714; Puckett v. Soo Line R.R. Co. (7th Cir. 1990), 897 F.2d 1423, 1426; Akerberg v. Metropolitan R. (N.D. Ill. 1991), 773 F. Supp 111, 113; Anderson, 771 F. Supp at 229.

Whether a train’s warning of its approach is adequate and whether particular warning devices at a rail crossing provide adequate protection are questions of fact for the jury and should be decided on a case-by-case basis. Bassett, 131 Ill. App. 3d at 813; Gray v. Terminal R.R. Association (1962), 37 Ill. App. 2d 376, 379, 185 N.E.2d 700; Puckett, 897 F.2d at 1427; Akerberg, 773 F. Supp at 113; Anderson, 771 F. Supp. at 229.

Puckett is factually similar to the present case. On a misty evening, a pedestrian was struck and killed at a crossing equipped with flashing lights, bells and gates for automobiles, but not for pedestrians. The brakeman first observed decedent approximately 150 feet from the crossing, standing on the tracks next to the tracks upon which the train traveled. The brakeman noticed that decedent wore a hat with ear flaps and never looked in the direction of the approaching train. He then watched decedent “shuffle” toward the tracks and immediately yelled for the engineer to engage the emergency brake, but the effort was futile and decedent was killed.

The Seventh Circuit, applying Illinois law, determined that defendant was not entitled to summary judgment and that the evidence presented a genuine issue as to whether the train crew had properly performed its duty to signal the approach of the train. Puckett, 897 F.2d at 1426.

The jury in this case was presented with conflicting evidence as to the actions of the train crew, and its verdict against the Milwaukee Road was certainly not against the manifest weight of the evidence.

Additionally, Milwaukee Road argues that it was merely following the no-whistle ordinance of the Village of Glenview. However, we find that it was still under a duty to adequately warn decedent, who was observed near the tracks, and that whistling in such an emergency was certainly not prohibited.

We also determine that it is not against the manifest weight of the evidence for the jury to have found defendant Amtrak guilty of negligence in operating and maintaining the station and the crosswalk.

While the Amtrak ticket agent testified that he made a warning announcement regarding the nonstop freight train, at least three other persons in the immediate area did not hear any announcements. The jury could properly have weighed the witnesses’ testimony and determined that an adequate warning of the approaching train was not made.

Further, we find that the jury could have properly determined that the crosswalk area provided inadequate warning of approaching trains since it was devoid of any warning devices for travelers, such as signs, gates and flashing lights. (Bassett, 131 Ill. App. 3d at 813; Gray, 37 Ill. App. 2d at 379; Puckett, 897 F.2d at 1427; Akerberg, 773 F. Supp at 113; Anderson, 771 F. Supp. at 229.) Evidence was also offered that the poor maintenance of the wooden walkway might have distracted persons crossing the tracks.

Defendants cite several older cases in support of their argument that the jury’s verdict was against the manifest weight of the evidence because of the negligence of plaintiff. (Carrell v. New York Central R.R. (1943), 384 Ill. 599, 52 N.E.2d 201; Chicago, Milwaukee & St. Paul Ry. Co. v. Halsey (1890), 133 Ill. 248, 254, 23 N.E. 1028, 1030; Chicago & Rock Island R.R. Co. v. Still (1858), 19 Ill. 499; Theobald v. Chicago, Milwaukee & St. Paul Ry. Co. (1898), 75 Ill. App. 208.) We no longer need follow those cases since those plaintiffs faced a contributory negligence standard, not the modified comparative negligence standard now in place. See Ill. Rev. Stat. 1991, ch. 110, par. 2-1116.

While a person who approaches a train has the duty to look and listen, this issue goes to the question of comparative negligence and does not bar a cause of action. Eaton v. Baltimore & Ohio R.R. Co. (1990), 198 Ill. App. 3d 137, 142, 555 N.E.2d 790.

The jury should take into account both visible and audible attempts to warn a traveler of an approaching train when deciding whether a party is negligent. The jury in this case determined that defendants were 70% negligent and decedent 30% negligent. We find there is ample support in the record for this verdict as to each of the defendants.

Defendants next argue that the trial court erred when it refused to give their tendered instruction regarding the duty of a pedestrian at a railroad crossing.

Defendants tendered this modified version of an Illinois Pattern Jury Instruction titled “Duty of Drivers Crossing Tracks” (Illinois Pattern Jury Instructions, Civil, No. 73.01 (2d ed. 1971) (hereinafter IPI Civil 2d)):

“A railroad crossing is a place of danger. If you believe from the evidence that as the decedent was approaching the crossing, she knew, or, as in the exercise of ordinary care should have known, that a train approaching the crossing was so close to the crossing that it would be likely to arrive at the crossing at about the same time as the decedent[’s vehicle], then it was the duty of the decedent to yield the right of way to the train.” (Brackets denote IPI version.)

Defendants claim that their modified version correctly states Illinois law and sets out their theory of defense. The trial court refused the instruction, stating that it related to automobiles at a crossing but has no application to a pedestrian on a depot crosswalk.

While there is no pattern instruction regarding pedestrians at depot crossings, Supreme Court Rule 239 would allow a non-IPI instruction to be given. (134 Ill. 2d R. 239.) But where a pattern instruction has been given and correctly and adequately charges the jury, the use of additional instructions is improper. Phelan v. State Farm Mutual Automobile Insurance Co. (1983), 114 Ill. App. 3d 96, 106, 448 N.E.2d 579; Kent v. Knox Motor Service, Inc. (1981), 95 Ill. App. 3d 223, 226-27, 419 N.E.2d 1253.

The trial court accepted plaintiff’s tendered instruction (IPI Civil 3d No. 10.03) regarding decedent’s duty of care:

“It was the duty of the decedent before and at the time of the occurrence, to use ordinary care for her own safety. A decedent is contributorily negligent if (1) she fails to use ordinary care for her own safety; and (2) her failure to use such ordinary care is a proximate cause of her death.
The decedent’s contributory negligence, if any, does not bar plaintiff’s recovery. However, the total amount of damages to which plaintiff would otherwise be entitled is reduced in proportion to the amount of decedent’s negligence. This is known as comparative negligence.”

The trial court also allowed plaintiff’s tendered instructions defining ordinary care and negligence, which were based upon IPI Civil 3d Nos. 10.01 and 10.02.

Defendants’ tendered instruction would not have told the whole story. While a traveler generally must yield the right of way to a train, if it becomes clear that the pedestrian does not hear the warning, will not heed the signal or is unable to escape, then it is the duty of the crew to attempt to stop the train. Robertson v. New York Central R.R. Co. (1944), 388 Ill. 580, 584, 58 N.E.2d 527; Morgan v. New York Central R.R. Co. (1927), 327 Ill. 339, 346, 158 N.E.2d 724; Higgins, 16 Ill. App. 2d at 232; Akerberg, 773 F. Supp at 113.

We affirm the trial court’s ruling since we find that plaintiff’s three cited instructions adequately apprised the jury of decedent’s duty under relevant law, and that defendants’ proposed instruction is not an accurate statement of the relevant law in this case.

Defendants next argue that the trial court erred in preventing impeachment of plaintiff’s railroad expert by evidence of a prior accident involving the expert.

Michael Massie testified as a railroad accident expert, having investigated more than 300 railroad accidents, 66 involving train/pedestrian incidents. In the present case, Mr. Massie testified that the train crew should have blown the whistle immediately upon observing decedent near the station building.

Defendants argue that they should have been allowed to impeach Mr. Massie’s testimony regarding appropriate use of the whistle by showing he acted inconsistently in a 1978 accident in which he was the engineer on a train that rear-ended a second train. Mr. Massie stated that before that collision, he did not have time to blow the whistle of his train to alert the second train’s crew of the danger and jumped off of the train.

The trial court refused to allow the impeachment because Mr. Massie did not hold himself out to be an expert in 1978, the incident was too remote in time, and a trial court at the time found Mr. Mas-sie was not negligent.

We agree with the reasoning expressed by the trial court. Further, we reject defendants’ contention that the accident establishes that Mr. Massie’s expert credentials are a sham. The record adequately demonstrates that he has extensive experience in investigating accidents and any accident he may have been involved in 12 years prior to trial bears little reflection upon his status as an expert. If anything, such an experience may have helped to shape his understanding of similar accident situations, but certainly does not relate to the present case involving a pedestrian crossing at a depot.

Defendants next claim that plaintiff violated a motion in limine barring evidence of protective devices at other crossings without showing substantial similarity between those crossings and the crossing at Glenview, and that such error requires a mistrial.

Three photographs of other crossings were admitted to illustrate the testimony of plaintiff’s human factors expert Dr. Christensen, who stated that there were devices and systems available at the time of the accident that could have prevented decedent’s death had they been in place at Glenview.

Plaintiff established foundation for the admission of the photographs by Dr. Christensen’s testimony that the crossings are located in areas with weather and topography similar to Glenview; each had two sets of tracks that pedestrians cross; each had a crosswalk made of a material other than concrete, two involving wooden planks as in Glenview; each had a passenger station on one side of the tracks and parking on the other; each crosswalk had a straight approach of track on either side for some distance; and, at each, trains and pedestrians crossed at the same level, wherein the pedestrian crosswalk intersected the path of the train.

Defendants argue that plaintiff failed to establish similarities regarding the numbers of pedestrians that use the crossings and the number of freight and passenger trains that use the crossings.

We find plaintiff has established substantial similarity between the Glenview crossing and the crossings shown in the three photographs. Further, defendant failed to object to foundation based on a lack of statistical information regarding train and pedestrian traffic at the other crossings. While defendants addressed this in their cross-examination of plaintiff’s expert, they failed to object on that basis at trial.

Defendants next argue that the testimony of Dr. Christensen was reconstruction testimony that was speculative as to what decedent thought and unnecessary since there was at least one eyewitness. Defendants contend there was no basis for the witness’ opinion and that such an opinion as to what decedent thought was not beyond the ken of the average juror, since anyone could speculate as to her state of mind.

While plaintiff does not deny that the expert’s testimony is reconstruction testimony, it argues that his testimony did not contradict eyewitness testimony, but rather helped to explain why decedent was not aware of the approach of the train by reference to scientific principles relating to human factors. Plaintiff contends that Dr. Christensen’s testimony is an attempt to rebut defendants’ assertion that decedent’s negligence was the sole proximate cause of her death; that her failure to stop, look and listen was a function of the inadequacy of the warnings given her and the competing stimuli which may have distracted her (the uneven rain-slick crosswalk and rain).

Because eyewitness testimony is preferred, reconstruction testimony is generally restricted; however, it may be allowed in addition to eyewitness testimony if (1) the expert is qualified in his field, and (2) if the testimony will aid the fact finder in the resolution of the dispute. Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 392 N.E.2d 1; Loseke v. Mables (1991), 217 Ill. App. 3d 521, 524, 577 N.E.2d 796; see Augenstein v. Pulley (1989), 191 Ill. App. 3d 664, 673-81, 547 N.E.2d 1345, appeal denied sub nom. Augenstein v. Steinmetz (1990), 131 Ill. 2d 557, 553 N.E.2d 393 (extensive discussion of relevancy of eyewitness testimony to admissibility of reconstruction testimony).

Plaintiff cites as support for the witness’ testimony Poltrock v. Chicago & North Western Transportation Co. (1986), 151 Ill. App. 3d 250, 502 N.E.2d 1200, wherein Dr. Christensen’s expert reconstruction testimony was admitted to explain why decedent “froze” as she looked up and saw the train, but failed to move quickly enough through the crosswalk before being struck and killed. Plaintiff cites the trial court’s statement that the testimony was relevant since it concerned how people react to stressful situations and helped explain decedent’s actions to the jury.

The trial court’s admission of Dr. Christensen’s testimony in the present case was not an abuse of discretion since it may have helped the jury to determine decedent’s degree of negligence by explaining her actions in terms of concepts that the average juror might not know or might overlook, such as “competing stimuli.”

Defendants argue that Dr. Christensen implied facts not in evidence — that decedent was looking down as she walked, that she was concerned about falling on the uneven wooden planks in the crosswalk, or slipping on the wet boards. However, there was no contradictory testimony by any eyewitnesses as to where decedent was looking when she walked on the crosswalk. The brakeman could not see her face because of the umbrella, and Mr. Kershaw was not certain as to the focus of her attention.

Further, the record supports plaintiff’s argument that the witness was explaining what a reasonable person would do under the same circumstances, not what decedent herself was thinking. Poltrock supports such a description of how a person in the same circumstances as decedent would have reacted at the time of the accident. Poltrock, 151 Ill. App. 3d at 255.

Finally, defendants contend it was error for the trial court to allow Dr. Christensen to testify as to the safety features of the Glen-view crossing because he is not qualified as a railroad safety expert.

Plaintiff argues that Dr. Christensen was tendered as a human factors expert, not a railroad safety expert. His testimony was intended to explain why the crosswalk was hazardous; how people react to competing stimuli; and why some warnings are effective while others are not; how a person may adapt to a constant stimulus such as a bell; and why people have difficulty concentrating on more than one thing at a time.

We agree with the trial court that the experience earned by the witness in his 40 years in the field qualifies him to give an opinion as to which warning devices may be more effective or whether decedent unreasonably remained unaware of the approaching train under these particular circumstances.

For all of the foregoing reasons, the decision of the trial court is affirmed.

Affirmed.

RIZZI and TULLY, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREIMAN

license: Public Domain

text:
    TERRA-NOVA INVESTMENTS, Indiv. and as a Representative of a Class of Persons Similarly Situated, Plaintiff-Appellant, v. EDWARD J. ROSEWELL, County Treasurer of Cook County, et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—91—0281
    Opinion filed September 16, 1992.

      Arnold M. Flamm, of Orlikoff & Flamm, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Jeanette Sublett, Patricia M. Shymanski, and Patricia M. Moser, Assistant State’s Attorneys, of counsel), for appellees.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Plaintiff appeals from the dismissal of its complaint which challenges the constitutionality of a transfer provision in the Revenue Act which provides that fees in excess of $500,000 collected from taxbuyers for a sale in error fund shall be transferred to the general revenue fund (Ill. Rev. Stat. 1989, ch. 120, par. 741.1(g)).

This appeal raises five issues as to whether (1) plaintiff’s cause of action constitutes a collateral attack on a prior judgment; (2) plaintiff’s claim is barred by the voluntary payment doctrine; (3) plaintiff has standing to contest the constitutionality of the statute; (4) the complaint states a cause of action under article I, section 12, of the Illinois Constitution insuring access to justice (Ill. Const. 1970, art. I, §12); and (5) the challenged statute violates the due process and equal protection rights of the plaintiff class.

For the reasons which follow, we affirm the dismissal of plaintiff’s complaint because, although it is not a collateral attack or barred by voluntary payment and plaintiff has standing, we find the statute constitutional.

The Revenue Act governs tax sales of property. For each parcel of property purchased at a scavenger tax sale in 1989, the taxbuyer was required to pay a $60 fee to the county collector. (Ill. Rev. Stat. 1989, ch. 120, par. 741.1(f).) The county collector then deposits the money with the county treasurer, who maintains an interest-bearing fund used to satisfy the refund of interest and costs for tax sales in error. (Ill. Rev. Stat. 1989, ch. 120, par. 741.1(g).) Section 260.1(g) further provides that “[a]ny moneys accumulated in the fund by the county treasurer in excess of $500,000 shall be paid each year to the general fund of the county.” Ill. Rev. Stat. 1989, ch. 120, par. 741.1(g).

Plaintiff challenges the constitutionality of the statutory scheme which provides that funds in excess of $500,000 pour over into the general corporate fund of the county.

Defendants filed a section 2 — 619.1 combined motion to dismiss relying on section 2 — 615(a) for failure to state a cause of action and section 2 — 619(4) for dismissal by reason of a prior judgment. Ill. Rev. Stat. 1989, ch. 110, pars. 2-619.1, 2-615(a), 2-619(4).

At a hearing held on December 20, 1990, the trial court offered plaintiff the opportunity to amend its complaint, but plaintiff declined and instead chose to stand on its complaint. The trial court then granted defendants’ motion to dismiss based on its analysis of Boynton v. Kusper (1986), 112 Ill. 2d 356, 494 N.E.2d 135 (held unconstitutional the portion of the marriage license fee collected to fund domestic violence centers); Crocker v. Finley (1984), 99 Ill. 2d 444, 459 N.E.2d 1346 (held unconstitutional a $5 filing fee imposed on divorce petitioners to fund domestic violence shelters); and Ali v. Danaher (1970), 47 Ill. 2d 231, 265 N.E.2d 103 (upheld a $1 filing fee imposed on civil plaintiffs to fund the local county law library).

The threshold inquiry, raised by defendants, is whether plaintiff’s cause of action is precluded under section 2 — 619(a)(4), which provides for involuntary dismissal where “the cause of action is barred by a prior judgment.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(4).) The prior judgment relied on by defendants is the supplemental order entered by the circuit court on January 31, 1990, confirming the sales made in the collector’s application proceeding.

Plaintiff contends that it is not bound by the supplemental order confirming the sale because it was not a party to that proceeding and it received no notice of the order’s entry.

We find that plaintiff did not enjoy the status of a party at the sale confirmation proceeding and, thus, its complaint cannot be barred as an impermissible collateral attack on the sale confirmation order.

The present case involves sales of tax delinquent lands which are special statutory proceedings created by the Revenue Act. Section 235a of the Revenue Act is commonly known as the Scavenger Act (In re Application of Rosewell (1987), 117 Ill. 2d 479, 481, 512 N.E.2d 1256) and authorizes the sale of certain tax delinquent land for bids which may be less than the full amount of money actually owed.

The Scavenger Act directs the county collector to institute a scavenger sale by applying to the court for judgment of sale. Upon application by the collector for judgment and order of sale, the court acquires in rem jurisdiction of the property and subject matter. (In re Application of Cook County Treasurer (1985), 135 Ill. App. 3d 901, 904, 482 N.E.2d 361.) The court retains jurisdiction throughout the proceedings to order the issuance of a tax deed. In re Application of Cook County Treasurer, 135 Ill. App. 3d at 907.

The designated lands are then sold at public sale to the highest bidder who must, among other things, then execute an application for certificate of purchase (Ill. Rev. Stat. 1989, ch. 120, par. 716b) and pay the statutorily designated sale in error fee (Ill. Rev. Stat. 1989, ch. 120, par. 741.1(f)). The Scavenger Act mandates that no sale of lands is final until confirmed by the court.

Accordingly, within 30 days after the court-ordered scavenger sale, the collector must file a report in the court with the results of the sales and the amount of the fees assessed against each bid. The court must approve the sales in a confirmation proceeding and a certificate of purchase is then issued to the highest bidder at the scavenger sale.

Next, at the expiration of the established redemption period, the owner of the certificate of purchase may petition the same circuit court where the judgment of sale was entered to issue a tax deed if the real estate is not redeemed. Ill. Rev. Stat. 1989, ch. 120, par. 747.

According to these statutorily prescribed procedures, we find that a scavenger sale participant who becomes the highest bidder and then seeks to obtain a certificate of purchase retains the status of a “bidder” until after the confirmation of sale when he acquires a certificate of purchase. In a case involving a tax sale, the Illinois Supreme Court characterized the taxbuyer as “only a bidder” until after the sale is held, the bid is accepted, and a certificate is issued. (Thornton, Ltd. v. Rosewell (1978), 72 Ill. 2d 399, 405, 381 N.E.2d 249.) The supreme court stated that “[a]s to this property, plaintiff was not yet the owner of the fee [citation], nor even a certificate holder, but only a bidder in the process of making a purchase.” Thornton, 72 Ill. 2d at 405.

Similarly, in a tax deed proceeding following a scavenger sale, the City of Chicago redeemed the property. Thereafter, its petition to dismiss the tax deed proceeding was granted because it “could not be bound by the judgment and order of sale until it was made a party to the proceeding” and there was nothing to indicate that the City of Chicago was a party prior to the time it filed its petition to dismiss the petition for a tax deed. In re Application of County Treasurer (1972), 4 Ill. App. 3d 243, 248, 280 N.E.2d 761.

When the bidder-taxbuyer becomes the owner of a certificate of purchase following a confirmation of a scavenger sale and petitions for a tax deed, then the taxbuyer clearly acquires the status of a party in the proceedings. Until that time, the county collector, by statute, is the party named and held responsible for the scavenger sale proceedings.

A person or entity cannot be bound by a judgment in a proceeding in which it was not a party. Shimkus v. Board of Review (1983), 117 Ill. App. 3d 826, 830, 454 N.E.2d 36.

The integrity of our system requires that a judgment rendered by a court having jurisdiction of the parties and the subject matter is not open to contradiction or impeachment in any collateral action or proceeding, except for fraud in its procurement. Even if the judgment is voidable and is so illegal or defective that it would be set aside or annulled on a proper direct application, it is not subject to collateral attack so long as it stands unreversed and in force. Buford v. Chief, Park District Police (1960), 18 Ill. 2d 265, 271, 164 N.E.2d 57, 60; Chicago Park District v. Kenroy, Inc. (1978), 58 Ill. App. 3d 879, 890, 374 N.E.2d 670, aff’d in part & rev’d in part on other grounds (1980), 78 Ill. 2d 555, 402 N.E.2d 181; Parker v. Board of Trustees (1966), 74 Ill. App. 2d 467, 469, 220 N.E.2d 258.

Collateral attacks are improper where there is an identity of parties or their privies in the collateral action and in the earlier suit. See Malone v. Cosentino (1983), 99 Ill. 2d 29, 457 N.E.2d 395 (the class plaintiff could not bring his civil class action suit challenging the constitutionality of certain fines levied against him and the other class members for traffic violations); Walker v. Cockrell (1982), 110 Ill. App. 3d 562, 564, 442 N.E.2d 660 (a class action that was instituted by certain plaintiffs whose underlying cases were already decided and that alleged unconstitutionality of a statute authorizing the circuit court clerk to retain 10% of bail-bond deposits for costs is an improper collateral attack).

In addressing the issue of whether an action should be barred under collateral estoppel principles, the appellate court defined “party” as “one who is named as such in the record and has been properly served with summons or has entered an appearance.” Collins v. St. Jude Temple No. 1 (1987), 157 Ill. App. 3d 708, 711, 510 N.E.2d 981.

In determining that an attorney for a party is not a “party,” the appellate court adopted the following definition from American Jurisprudence, second edition: “ ‘In connection with judicial proceeding the term “parties” is a technical word which has a precise meaning in legal parlance. It designates the opposing litigants in a judicial proceeding — the persons seeking to establish a right and those upon whom it is sought to impose a corresponding duty or liability ***.’ ” Evans v. Stoval (1980), 83 Ill. App. 3d 257, 259-60, 403 N.E.2d 1321, quoting 59 Am. Jur. 2d Parties §7 (1971).

Defendants’ reliance on De Bruyn v. Elrod (1981), 84 Ill. 2d 128, 418 N.E.2d 413, is misplaced because, unlike the present case, the parties precluded in De Bruyn were also parties to the earlier proceeding, i.e., a mortgage foreclosure. The plaintiff in De Bruyn had been a judgment creditor in the earlier mortgage foreclosure. The statute then in effect designated judgment creditors as “nonrecord claimants” (Ill. Rev. Stat. 1969, ch. 95, par. 23.1), provided for the method of joinder of such nonrecord claimants (Ill. Rev. Stat. 1969, ch. 95, par. 23.3), for their manner of appearance and rights of redemption (Ill. Rev. Stat. 1969, ch. 95, par. 23.5). Accordingly, it seems clear that the status of a bidder at a tax sale is quite different than the status of a judgment creditor as a “party” in a mortgage foreclosure under the statute then in effect.

Second, defendants assert that plaintiff’s claim for the creation of a protest fund is barred by the voluntary payment doctrine because plaintiff did not plead either payment under protest or allegations amounting to duress. We disagree.

In its complaint, plaintiff made the following allegation:

“Plaintiff paid said sum of $60 to said defendant under duress inasmuch as defendant would not have issued the certificate of purchase to him without such payment.”

We find that this statement sufficiently alleges payment under duress.

We reject plaintiff’s argument that this issue has been waived on the grounds that defendants failed to raise it in the trial court. The record reveals that defendants expressly raised the voluntary payment doctrine in their brief in opposition to plaintiff’s motion for a preliminary injunction.

However, on its merits, defendants cannot prevail on this issue.

The voluntary payment doctrine provides that a payor may not recover fees voluntarily paid, even if the fees assessed or imposed were illegal, unless (1) the payor lacked knowledge of the facts upon which to protest the fees or taxes at the time payment was made, or (2) the payment was made under duress. Geary v. Dominick’s Finer Foods, Inc. (1989), 129 Ill. 2d 389, 393, 544 N.E.2d 344.

The duress exception rests upon the critical factor that the payee must exert some actual or threatened power over the payor from which the payor has no immediate relief except by paying the tax. Geary, 129 Ill. 2d at 402, 544 N.E.2d 344.

Such duress was found by the supreme court in De Bruyn when the plaintiffs “were confronted with the choice of payment of the sheriffs fees or his refusal to effect the requested sale, execution or redemption.” (De Bruyn, 84 Ill. 2d at 136.) The De Bruyn court relied on Ross v. City of Geneva (1978), 71 Ill. 2d 27, 373 N.E.2d 1342, where the plaintiff was held to have paid involuntarily a surcharge on his electric bill.

The present plaintiff was faced with the same choice as the plaintiffs in De Bruyn and is thus not barred from recovery under the voluntary payment doctrine since the facts constituted duress which left plaintiff little choice but to pay the fee.

Third, defendants contend that plaintiff lacks standing to question the validity of the contested statutory provision.

A court will consider a constitutional challenge to a statute by a party who is affected by the statute or aggrieved by its operation. (McKenzie v. Johnson (1983), 98 Ill. 2d 87, 92, 456 N.E.2d 73; Mlade v. Finley (1983), 112 Ill. App. 3d 914, 917, 445 N.E.2d 1240.) A person who pays the fee has a right to challenge the disposition of the fee.

In McKenzie, the plaintiff as a taxpaying property owner was held to have standing to challenge a statutory property tax exemption. The court reasoned that the plaintiff had alleged a sufficient stake or interest in the controversy by bringing himself within the ambit of a specific constitutional guarantee (Ill. Const. 1970, art. IX, §6) regarding property taxes and by claiming that his tax liability is generally affected by a statute which facially violates that guarantee. (McKenzie, 98 Ill. 2d at 93.) In Mlade, the plaintiffs who paid certain fees mandated by the clerks-of-court act had standing to challenge the constitutionality of the fees paid. Mlade, 112 Ill. App. 3d at 917.

In contrast, the plaintiffs in an action against insurance companies for fraud arising from the sale of certain underinsured motorist coverage did not have standing to sue where they had not purchased the insurance coverage in question. Glazewski v. Coronet Insurance Co. (1985), 108 Ill. 2d 243, 483 N.E.2d 1263.

Here taxbuyers alone are affected by the sale in error fund because it is the taxbuyer who pays the fee, is afforded relief from void tax sales, and has the right of refund (see La Salle National Bank v. Hoffman (1971), 1 Ill. App. 3d 470, 274 N.E.2d 640) and has standing to challenge the statutory scheme relating to fee proceeds.

Fourth, plaintiff asserts that its complaint states a cause of action under article I, section 12, of the Illinois Constitution which seeks to assure access to our courts and provides:

“Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and promptly.” Ill. Const. 1970, art. I, §12.

Plaintiff argues that the sale in error fee “appears” to be a fee or tax on litigation since it is a condition precedent for obtaining a certificate of purchase and, thus, the fee violates the constitutional right to obtain justice freely. Plaintiff admits that at the time a tax-buyer makes his purchase, he is not yet a litigant but merely a potential litigant who has a right to institute a legal action to obtain a tax deed if redemption from the scavenger sale is not made.

The constitutional guarantee to a right to a remedy and to obtain justice freely has been construed to apply to litigants, such as divorce petitioners (Crocker, 99 Ill. 2d 444, 459 N.E.2d 1346); parties filing tax objections (Sanko v. Carlson (1977), 69 Ill. 2d 246, 371 N.E.2d 613); plaintiffs in civil actions (Ali, 47 Ill. 2d 231, 265 N.E.2d 103); defendants obtaining release by paying bail (Schilb v. Kuebel (1970), 46 Ill. 2d 538, 264 N.E.2d 377); a party filing a jury demand (People ex rel. Flanagan v. McDonough (1962), 24 Ill. 2d 178, 180 N.E.2d 486); and civil litigants (Wenger v. Finley (1989), 185 Ill. App. 3d 907, 541 N.E.2d 1220).

In Crocker, the only case cited by plaintiff regarding this issue, the supreme court struck down a $5 court filing fee imposed on dissolution-of-marriage petitioners because the fees collected were to fund a general welfare program, i.e., the Domestic Violence Shelter and Service Fund. The Crocker court held that the Illinois constitutional right to obtain justice freely inherently requires that court filing fees and taxes may be imposed only for purposes relating to the operation and maintenance of the courts. Crocker, 99 Ill. 2d at 454.

“The constitution does not guarantee to the citizen the right to litigate without expense.” (Emphasis added.) (Ali, 47 Ill. 2d at 236; see also Sanko, 69 Ill. 2d 246, 371 N.E.2d 613.) Plaintiff acknowledges that it was not a party to the original tax sale case so that he was not seeking resort to the courts in the manner envisioned by article I, section 12, of the Illinois Constitution.

The sale in error fee was a condition precedent to receiving a certificate of purchase and the receipt of such certificate does not constitute obtaining justice within the meaning of the constitution. Accordingly, we find that plaintiff’s complaint fails to state a cause of action under article I, section 12, of the Illinois Constitution.

Moreover, the Illinois Supreme Court has long rejected a taxpayer’s argument that the payment of taxes prior to filing an objection compelled a taxpayer to purchase justice in contravention of the constitutional right to obtain justice freely. (Lakefront Realty Corp. v. Lorenz (1960), 19 Ill. 2d 415, 167 N.E.2d 236.) Relying on Lakefront Realty, we previously held that the mandatory prepayment provisions in the Revenue Act did not deprive a tax objector of its constitutional right to due process of law. (In re Application of County Treasurer (1976), 42 Ill. App. 3d 895, 356 N.E.2d 844.) Similarly, we believe that payment of the sale in error fee prior to filing an objection does not offend the constitution.

Lastly, plaintiff asserts that the provisions concerning the sale in error fund are unconstitutional to the extent that the statute authorizes the transfer of some money from the sale in error fund to the general county fund.

Section 260.1(g) provides:

“Any moneys accumulated in the [sale in error] fund by the county treasurer in excess of $500,000 shall be paid each year to the general fund of the county, prior to the commencement of the annual tax sale.” Ill. Rev. Stat. 1989, ch. 120, par. 741.1(g).

Plaintiff contends that the transfer provision violates both the due process and equal protection clauses of the constitution because the challenged fee is imposed on only a narrow class of persons, i.e., taxbuyers, and all other classes of people, although they are equally eligible to receive the benefits of the county’s general revenue fund, were not assessed the fee. Plaintiff’s objection to the statute “is not that the excess collections go into the county’s general fund, but rather that those collections are imposed upon only a narrow class of persons.”

Defendant responds that the challenged transfer provision withstands constitutional scrutiny because there is a reasonable relationship between the purpose of defraying the costs of administering the sale in error procedure and charging the cost to the taxbuyers, the only group of persons which benefits from the procedure.

Crocker (Crocker, 99 Ill. 2d 444, 459 N.E.2d 1346 (struck down provision allowing a portion of filing fees to domestic violence shelters)), Boynton (Boynton, 112 Ill. 2d 356, 494 N.E.2d 135 (struck down same scheme addressed in Crocker)), Ali (Ali, 47 Ill. 2d 231, 265 N.E.2d 103 (upheld law library fees)), and Wenger (Wenger, 185 Ill. App. 3d 907, 541 N.E.2d 1220 (upheld fees to support dispute resolution centers)) impose upon us a “rational-relation” test to determine whether reasonable means have been adopted to accomplish the public interest sought to be protected. These cases are of only passing interest to our analysis since it is clear that the fees imposed upon all taxbuyers have a clear and sufficient nexus with the sale in error refunds to some taxbuyers to withstand constitutional scrutiny.

Excess collections are transferred to the county’s general corporate fund rather than to any specific earmarked fund. It is beyond dispute that the fees could have been imposed on taxbuyers and all of the funds deposited in the county’s general fund and that the county would be liable for sales in error and other sums now required to be paid out of the sale in error fund under the present scheme. The fact that the tax was imposed upon a narrow class of persons would not have been cause for complaint in that regard since such a classification would have been reasonable.

Defendants correctly rely upon Fried v. Danaher (1970), 46 Ill. 2d 475, 263 N.E.2d 820, which upheld the constitutionality of a statute authorizing the court clerk to retain jury demand fees even though the services of a jury were not ultimately needed by the party making the jury demand and paying the fee. Although in that case no fund was established, the funds were paid to the court clerk and, we assume, were used for other administrative purposes in his office.

The transfer of money accumulated in one fund into a general revenue fund is generally within the province and authority of the legislature. While we hesitate to provide examples of this authority for fear that it will encourage more litigation, the Liquor Control Act provides that fees collected from the issuance of licenses are to be paid into the Dram Shop Fund. (Ill. Rev. Stat. 1991, ch. 43, par. 118.) Excess money which accumulates in the Dram Shop Fund is then transferred into the General Revenue Fund. (Ill. Rev. Stat. 1991, ch. 127, par. 144.20. Additionally, the legislature has empowered the governor to transfer monies from any special fund in the State treasury to the general revenue fund “notwithstanding any limitation on the use of monies in the special fund.” Ill. Rev. Stat. 1991, ch. 127, par. 141(d); see also Ill. Rev. Stat. 1991, ch. 127, par. 4351 et seq.

There is a strong presumption of constitutionality which accompanies the State’s scheme of taxation which may be overcome only by a clear showing that it is arbitrary and provides an unreasonable classification. (Bernier v. Burris (1986), 113 Ill. 2d 219, 227, 497 N.E.2d 763; People ex rel. Kutner v. Cullerton (1974), 58 Ill. 2d 266, 273, 319 N.E.2d 55.) Plaintiff’s complaint does not overcome that presumption.

In reviewing a dismissal order based on section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), this court must determine if the allegations in the complaint are sufficient to state a cause of action upon which relief may be granted. (Aguilar v. Safeway Insurance Co. (1991), 221 Ill. App. 3d 1095, 1100-01, 582 N.E.2d 1362.) Assuming all of plaintiff’s allegations to be true and giving them every intendment, the statute would be constitutional, and thus, the trial court properly dismissed plaintiff’s complaint for failure to state a cause of action.

Judgment affirmed.

RIZZI and TULLY, JJ., concur.

      Excess money accumulated in special funds is routinely transferred into the General Revenue Fund by the legislature. The General Assembly recently enacted the Emergency Budget Act of Fiscal Year 1992 (Act) providing that excess revenues held in certain special funds should be transferred in the General Revenue Fund. (Pub. Act 87 — 838, eff. Jan. 24, 1992.) This Act amended the following statutes to authorize the transfer of designated monies into the General Revenue Fund: Illinois Pesticide Act (Ill. Rev. Stat. 1991, ch. 5, par. 822.1 (Pesticide Control Fund)); Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1991, ch. 8, par. 37 — 32 (Illinois Race Track Improvement Fund)); Violent Crime Victims Assistance Act (Ill. Rev. Stat. 1991, ch. 70, par. 510 (Violent Crime Victims Assistance Fund)); Illinois Insurance Code (Ill. Rev. Stat. 1991, ch. 73, par. 1020.3 (Insurance Financial Regulation Fund) and par. 1065.56 — 1 (Insurance Producer Administration Fund)); Illinois Vehicle Code (Ill. Rev. Stat. 1991, ch. 95½, par. 18c — 1601 (Transportation Regulatory Fund)); Cycle Rider Safety Training Act (Ill. Rev. Stat. 1991, ch. 95½, par. 806 (Cycle Rider Safety Training Fund)); Illinois Coal Technology Development Assistance Act (Ill. Rev. Stat. 1991, ch. 96½, par. 8204 (Coal Technology Development Assistance Fund)); Illinois Dental Practice Act (Ill. Rev. Stat. 1991, ch. 111, par. 2342 (Illinois State Dental Disciplinary Fund)); Illinois Nursing Act of 1987 (Ill. Rev. Stat. 1991, ch. 111, par. 3524 (Nursing Dedicated and Professional Fund)); Illinois Optometric Practice Act of 1987 (Ill. Rev. Stat. 1991, ch. 111, par. 3920 (Optometric Licensing and Disciplinary Committee Fund)); Pharmacy Practice Act of 1987 (Ill. Rev. Stat. 1991, ch. 111, par. 4147 (Illinois State Pharmacy Disciplinary Fund)); Medical Practice Act of 1987 (Ill. Rev. Stat. 1991, ch. 111, par. 4400 — 21 (Illinois State Medical Disciplinary Fund)); Podiatrie Medical Practice Act of 1987 (Ill. Rev. Stat. 1991, ch. 111, par. 4819 (Illinois State Podiatrie Disciplinary Fund)); Real Estate License Act (Ill. Rev. Stat. 1991, ch. 111, par. 5816 (Real Estate Research and Education Fund) and par. 5817 (Real Estate License Administration Fund)); Structural Engineering Licensing Act of 1989 (Ill. Rev. Stat. 1991, ch. 111, par. 6636 (Design Professionals Administration and Investigation Fund)); Radiation Protection Act of 1990 (Ill. Rev. Stat. 1991, ch. 111½, par. 210 — 35 (Radiation Protection Fund)); Environmental Protection Act (Ill. Rev. Stat. 1991, ch. 111½, par. 1022.8 (Environmental Protection Permit and Inspection Fund) and par. 1022.13 (Underground Storage Tank Fund)); Illinois Health Facilities Planning Act (Ill. Rev. Stat. 1991, ch. 111½, par. 1162 (Illinois Health Facilities Planning Fund)). Numerous other statutes were similarly amended in this Act to provide the transfer of funds into the General Revenue Fund.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD JONES, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—1683
    Opinion filed September 17, 1992.

      Ann C. McCallister, of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

A jury convicted Edward Jones and Maurice Staten of armed robbery and home invasion. (Staten is not a party to this appeal.) Both men received 20-year prison terms, which were later reduced to 16 years. On appeal, defendant Jones argues that the State did not prove him guilty of the charges beyond a reasonable doubt. He also claims he was denied a fair trial because the State told the jury that police officers are more believable than other witnesses and that discrepancies in police reports are not significant because such reports are not evidence.

We affirm.

Background

According to the trial testimony, Stephanie Banks arrived at her father’s apartment on West 66th Street with her boyfriend at approximately 11 p.m. on December 28, 1988. Stephanie’s uncle, Ricky Banks, who also lived at the apartment, was there, although her father was not. Stephanie kept some jewelry in a box at the apartment.

About an hour later, Stephanie heard a noise in the hallway and looked out a peephole in the front door. She saw a man with a ski mask holding another man up against the wall. Stephanie immediately called the police and reported a robbery in progress. As soon as she hung up, the front door of the apartment was kicked in and Stephanie, her uncle, and her boyfriend hid in the pantry. From the pantry Stephanie saw one of the intruders’ arms when he came into the kitchen and reached for a radio. He then ordered them to come out with their hands raised.

Stephanie saw a man wearing a white ski mask trimmed in blue, holding a “big, long silver gun.” He pointed the gun in her face, pushed her, and told her to go into the bedroom. As she was walking she saw two additional people, one standing by the kitchen sink holding a shotgun and the other wearing a green sweatshirt and holding a police club. Stephanie was told to put her hands against the wall and keep her head down. She could not observe any of the intruders from this position.

Stephanie next heard one of the men yell that the police were coming and then she heard the sound of breaking glass. The police arrived and escorted her to the police station where she regained possession of her jewelry box. She also viewed a lineup but was unable to identify any of the intruders.

Ricky Banks, her uncle, testified that shortly after midnight on December 29, he, too, heard noises and looked out of the peephole in the door. He saw three men, two with ski masks. He thought it sounded like they were fighting. After his niece notified the authorities he hid with her in the pantry. They could hear people going through drawers in the bedroom.

After a short time Ricky heard an intruder yell at them to come out of the pantry. Ricky was told to keep his head down, but he caught a glimpse of the second intruder, who stood in the doorway holding a shotgun and wearing a ski mask. He noticed that a third man wore a light green sweatshirt and held a police baton.

Ricky testified that when Stephanie was ordered to leave the kitchen, he was told to keep his head down and his hands against the wall. One of the intruders reached into his pocket and removed five or six $20 bills. Then he heard the intruders break the window in the kitchen and leave.

Two detectives took Ricky to the police station where he viewed a lineup. He could not identify defendants. At the station, he told the police that he had $100 or $120 in his pocket when he was robbed, not the $59 and food stamps that were listed on the police report.

Three police officers who had arrived at the scene about nine minutes after midnight testified at trial. Officer Herman Slaughter testified that he was one of the ones who responded to the robbery-in-progress call, arriving at the victims’ apartment with his partner, Michael Wilson. As he walked toward the residence, he heard the sound of breaking glass coming from the rear of the building. He saw a man hang from the victims’ window ledge and then fall to the sidewalk and run. Slaughter identified this individual in court as Maurice Staten. Immediately after Staten hit the ground, another man followed him out the window. Slaughter identified this man as defendant, Edward Jones. Defendant was wearing a long dark jacket and a white knit wool hat. Both suspects jumped over a fence and ran east, pursued by the officers. Staten and defendant split up and Officer Slaughter ran west after defendant while Officer Wilson followed Staten, who was going north. Slaughter could not see defendant’s hands as he ran because his long jacket was “flapping out like a cape.” Eventually he caught up with defendant and stopped him as he was diving under a porch. After the arrest, Slaughter noticed a white ski mask on the ground approximately two feet from defendant.

After subduing defendant, Slaughter ran to join his partner and the other officers who had taken Staten into custody. Slaughter then retraced defendant’s path with another officer, Jones. The officers found a revolver under a truck and a brown plastic jewelry box and jewelry near the side of a building. Slaughter then went to the police station and made out a report, which stated “both offenders positively ID’d by victim at scene and also witnesses.” Slaughter said he did not get this information from the victims directly, but believed he had heard this information from someone else.

Officer Wilson, Slaughter’s partner, also was present at the scene. Wilson identified both defendants in court as the men who had jumped out of the window and climbed over the fence. According to Wilson, Staten wore a stone-washed denim jacket and defendant wore a white ski mask pulled over his face. Wilson chased Staten north until another officer, Jones, apprehended the suspect. Wilson then retraced Staten’s route and found a loaded shotgun lying in the snow under the window from which where the men had jumped.

Officer Richard Jones also testified. He was one of the officers on the scene and heard Slaughter exclaim that glass was breaking in the back of the building. Officer Jones identified the two defendants at trial as the two men he observed jumping over a fence. Officer Jones joined the chase and was positioned so that defendant and Officer Slaughter were running toward him. Officer Jones saw defendant throw a weapon under a vehicle as he fled. Officer Jones also saw defendant remove his white hat, just before Slaughter tackled defendant.

Officer Jones ran after Staten and arrested him. The officer then backtracked to where he saw Staten throw the gun and recovered it. He also recovered a ski mask and a jewelry box that later was identified as belonging to Stephanie Banks. At the police station, Jones searched the offenders and recovered $59 and a quantity of food stamps. Also recovered and listed in an inventory were a brown wooden baton and a second ski mask. Regarding the money allegedly taken from Ricky Banks, Officer Jones testified that Banks did not tell him he was missing $59 plus food stamps. The officer admitted that he did report that amount, which was the money recovered from the defendants, because Banks was upset at the time and unsure of the amount of money that had been taken from him.

Stephanie Banks and Ricky Banks identified watches and the jewelry box as having been taken from the apartment during the robbery. At the lineup held in the police station later that night, neither victim could identify the intruders.

Joyce Jones testified on behalf of her husband, defendant. On the night of the incident she was in her husband’s company at his aunt’s house in the 1600’s block of West 66th Street. Defendant worked as a janitor for his aunt, who owns the building located at that address. Around midnight, Joyce and Edward Jones walked to a gas station at 57th and Damen to buy cigarettes. On their way back, Edward stopped about a block away from his aunt’s house and told Joyce he was going into the alley to relieve himself. She waited for him and about 20 minutes later saw him in police custody on the corner.

Codefendant Maurice Staten testified that he had gone to the address on West 66th street to buy marijuana from Ricky Banks. He said he had been buying it from Banks on a weekly basis. As he was about to leave the apartment building he saw two men in ski masks; one had a shotgun and the other a large handgun. Staten testified that he was wearing a gold chain and Gucci watch, which the two men forced him to give to them. According to Staten, the men forced him back upstairs and into Ricky Banks’ apartment. Once inside, the shorter of the two men held him against the dining room wall near the entrance to the kitchen. Staten denied having a billy club. The taller intruder found the victims in the pantry. Staten saw a young woman pass him in the dining room but could not see her face. He said the shorter man told him to go into the kitchen and face the wall by the window. He did so and then heard someone say that the police were coming.

According to Staten, the taller man broke the kitchen window and forced him through it. After he fell to the ground the other two intruders jumped out of the window and fled. Staten said he walked through the gangway behind the building and just as he was halfway through, Officer Slaughter arrested him.

On cross-examination, he denied that he had been convicted of armed robbery in the past. In rebuttal, the State introduced certified copies of his two prior guilty pleas to armed robbery in 1980.

Ricky Banks also testified in rebuttal, denying that he sold marijuana and denying Staten’s claim of owning one of the watches recovered.

The jury convicted both defendants of all counts.

Opinion

I

Defendant first contends that he was not proved guilty beyond a reasonable doubt because (1) the victims could not identify him or describe the “distinctive full-length coat” he was wearing when arrested near the scene and (2) the police officers’ testimony was severely impeached.

The elements of armed robbery include the taking of property from the person or presence of another by use of force or threat of imminent use of force while armed with a dangerous weapon. (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2.) Home invasion requires proof that a defendant knowingly entered the dwelling place of another, knowing or having reason to know that one or more persons were present, and, while armed with a dangerous weapon, used force or threatened force upon anyone in the dwelling. Ill. Rev. Stat. 1987, ch. 38, par. 12 — 11(a)(1).

The record in this case includes the testimony of the two victims and three police officers at the scene. While Ricky and Stephanie Banks were unable to view the faces of the intruders, two of whom wore ski masks, Staten and defendant practically jumped into the arms of the policemen arriving at the scene. The defendant was identified by all three officers at trial as one of the suspects who had fled the victims’ apartment after the robbery. The victims’ positive identification of defendant was not necessary under these circumstances. In the brief time they observed their assailants before being forced to look down and face a wall, Stephanie and Ricky Banks saw two masked assailants holding large firearms and another, unmasked intruder who was wearing a green shirt and holding a wooden baton. Stephanie testified she only saw the green-shirted intruder for “about a second.” The victims were able to generally describe the assailants’ weapons and ski masks, which were recovered by the police. The victims’ inability to pick defendant out of a lineup as one of the intruders does not, therefore, create a reasonable doubt of his guilt; indeed, it would be most unlikely if the victims had been able to positively identify men who were wearing ski masks.

Defendant nonetheless asserts that the officers were not worthy of belief because of certain discrepancies in the testimony. Slaughter testified that defendant wore a long dark coat, which was introduced as an exhibit at trial. Stephanie Banks did not recognize it, however. According to defendant, he was the only one wearing such a “highly distinctive” full-length coat in the police lineup and the victims’ inability to identify the coat fatally undercuts the identification.

We find the argument unpersuasive. Victims confronted in their own homes by gun-wielding intruders who have just kicked in the door are not likely to study the apparel of their assailants, particularly when they have been directed to keep their heads down and then ordered to put their hands up against a wall. Such items as ski masks and large guns are quite likely to get the victims’ attention, while details of clothing or other identifying matters might not register. Moreover, if defendant was not present in the victims’ apartment during the armed robbery, it is difficult to explain how it was that three police officers watched him jump out of the victims’ window and flee. Defendant apparently would argue that the officers were lying about what they saw. In support of this contention, he states that Officer Jones said he saw defendant remove a ski mask as he fled, while Officer Slaughter, who was chasing defendant, did not see him remove the mask. According to defendant, Officer Jones’ testimony is thus rendered highly suspect, particularly since he supposedly was also watching Staten run at the same time he saw defendant remove the mask.

We find this supposed discrepancy to be of minor significance. Both officers, Jones and Slaughter, testified that they found the ski mask in question close to where defendant was apprehended. While Slaughter did not actually see defendant removing the ski mask from his head during the chase, Slaughter did notice that defendant was wearing a white knit cap. A white knit ski mask pulled up off the face might well look like a cap, and the fact Slaughter did not see its removal hardly impugns either Slaughter’s or Jones’ credibility. The two men were at different vantage points and Slaughter was concentrating on catching a fleeing suspect. Slaughter also testified that defendant’s long coat was “flapping out like a cape,” which prevented him from observing defendant’s hands.

We also reject defendant’s attempt to create a reasonable doubt of his own guilt by pointing to the discrepancy in the amount of money recovered from the defendants and the amount of money Ricky Banks claimed had been removed from his pocket. Banks said that five or six $20 bills were taken from him. The police report shows that $59 dollars was recovered, not the larger amount. We find this point to be of limited relevance, however. Even assuming Banks was not mistaken about the amount and denomination of bills in his pocket, the evidence indicates that one of the three intruders escaped without detection. He could have taken Banks’ money and the $59 recovered could have belonged to defendants.

Finally, we find unpersuasive defendant’s attempt to cast serious doubt on the officers’ testimony because of an error in the arrest report prepared by Officer Slaughter. The report suggests that the victims positively identified the assailants, while the evidence is undisputed that the victims could not, and did not, identify the men charged with the crime. Officer Slaughter testified, however, that when he made out the report he had not personally asked the victims about the identification and he believed that someone else at the scene had told him that the victims had positively identified the offenders.

The victims’ inability to identify the assailants beyond the ski masks and guns is not disputed in the evidence. Therefore, the error in the arrest report is immaterial to the issue of the victims’ identification of defendant. Likewise, the error does not undermine the independent identification testimony of the three officers who actually saw the defendant fleeing the scene. Officer Slaughter explained why he had included in the arrest report the statement that the victims had identified the perpetrators. Presumably, the jury found the explanation plausible. In any event, we find the impeachment value of the error in the arrest report to be marginal because it amounts to impeachment on a collateral issue. The officers’ eyewitness identification, along with the victims’ testimony as to the circumstances of the crime, combined to create strong evidence of guilt. Defendant was caught virtually red-handed at the scene.

We must affirm the conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313.) The standard of review when a defendant challenges the sufficiency of the evidence is to determine whether the record, viewed in the light most favorable to the prosecution, could reasonably support a finding of guilty beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453.) We find that the evidence of record clearly supports defendant’s conviction. Accordingly, we reject the evidentiary challenge to defendant’s convictions.

II

We also hold that the alleged trial error is without sufficient magnitude to warrant reversal. Defendant argues that the prosecutor improperly commented on the veracity of the police officers, “whose job it is to serve and protect and stop crime and apprehend criminals.” The prosecutor asked the jury whether they were going to believe the police who saw the defendants escape from the window and run, or whether they would believe “two guys, one of whom *** ha[d] lied *** twice already, and another who ha[d] obvious reasons to lie?”

Defendant did not object to the above comments at trial or in the post-trial motion, which means that the issue is waived unless it falls within the plain error doctrine. (See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) According to defendant, the above comments were highly improper, constituting reversible error, because a prosecutor is not allowed to argue that a witness is more credible solely because of his status as a police officer. (E.g., People v. Clark (1989), 186 Ill. App. 3d 109, 115-16, 542 N.E.2d 138.) While it is true that an officer’s testimony is to be evaluated in the same manner as that of any other witness (People v. Ford (1983), 113 Ill. App. 3d 659, 447 N.E.2d 564), challenges like the one made here are not generally reviewable under the plain error doctrine unless the testimony is closely balanced. In Ford, the court entertained the issue under the plain error doctrine because the evidence was closely balanced and “the outcome of [the] case depended] on which of two witnesses the jury believe[d] to be more credible.” (113 Ill. App. 3d at 661, 447 N.E.2d at 556.) In that case, the State’s only witness was a deputy sheriff who said the defendant sold her cannabis. The defendant, however, offered plausible testimony to support her theory of the case. The court therefore considered the State’s emphasis on the deputy’s credibility to be prejudicial.

Unlike the evidence in Ford, in the pending case the evidence cannot be said to be closely balanced. The State presented the testimony of the three officers who personally observed defendant flee from the victims’ apartment. The victims provided information about the ski masks and weapons, which were recovered at the scene. Only defendant’s wife testified on behalf of defendant, and if her testimony was intended to suggest defendant was merely in the wrong place at the wrong time, it falls short of establishing such a scenario. She testified that defendant told her he was going down the alley to relieve himself. At the time, however, he was less than a block from his aunt’s house. His wife testified she waited about 20 minutes, and then saw him under arrest. This does not constitute closely balanced evidence. The plain error doctrine, therefore, does not apply.

We believe, moreover, that the prosecutor’s remarks were not wholly uncalled for, given the defense attempts to attack the officers’ credibility and veracity. The defense attorney in opening statement suggested to the jury that “men in uniform” have certain biases and different perspectives and may find “their senses are changing and *** maybe getting better than they were originally.” (See People v. Spiezio (1989), 191 Ill. App. 3d 1067, 1075-76, 548 N.E.2d 561 (Prosecution’s remark that officers were more credible witnesses because of their sworn oath of office was proper comment on the evidence and invited by defense arguments that the police were lying in an attempt to frame him).) We conclude that the challenged remarks, even if improper, were not of the type that could fairly be said to be a material factor in the defendant’s conviction. See People v. Shum (1987), 117 Ill. 2d 317, 347, 512 N.E.2d 1183.

Defendant’s final challenge targets the prosecutor’s reference to police reports as not being evidence. According to defendant, the State thereby urged the jury to disregard the impeachment value of the police reports entirely, in favor of the officers’ trial testimony.

While it may be reversible error for a court to exclude impeaching evidence, such as a complainant’s prior inconsistent statements (People v. Whitehead (1966), 35 Ill. 2d 501, 221 N.E.2d 256), in the pending case the defense was in no way precluded from using the reports to impeach the officers’ credibility. In Whitehead, the Illinois Supreme Court held that the defense had laid a proper foundation for the impeachment of one of the State’s key identification witnesses. Because the impeaching evidence could have cast doubt on a crucial trial issue, the error was considered to be prejudicial and a new trial was ordered. In the pending case, however, the jury heard all the evidence and were aware of the defense theory of the case. The prosecutor’s comment that the report itself was not evidence is accurate. We do not believe that the comment on the police reports materially contributed to the jury’s verdict.

For the foregoing reasons, we affirm the conviction and sentence of Edward Jones.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.