author: MR. JUSTICE GOLDENHERSH

text:
    (No. 49369.
    JAMES GREENE, Appellee, v. THE CITY OF CHICAGO et al., Appellants.

      Opinion filed Oct. 6, 1978.

    Rehearing Denied Dec. 1, 1978.

      William R. Quinlan, Corporation Counsel, of Chicago (Daniel R. Pascale and Peter Fitzpatrick, of counsel), for appellant City of Chicago.
    Herbert F. Stride, Ltd., of Chicago (William J. Harte, of counsel), for appellee.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

Following a bench trial in this action to recover damages for personal injuries, the circuit court of Cook County entered judgment in the amount of $750,000 in favor of plaintiff, James Greene, and against defendants, the city of Chicago (hereafter defendant) and Timothy J. Ferm. Defendant appealed, the appellate court affirmed (48 Ill. App. 3d 502), and we allowed defendant’s petition for leave to appeal. The facts are adequately stated in the appellate court opinion and will be reviewed here only to the extent necessary to discuss the issues.

On December 12, 1970, at approximately 11:30 p.m., while plaintiff was driving south on Wentworth Avenue, his automobile stalled and came to a stop a short distance north of the intersection with 104th Street. The weather was overcast, with rain turning to snow, and visibility was poor. He testified that between 103rd and 104th Streets the overhead lights were out and it was “pitch dark.” After several attempts to start his automobile, plaintiff switched on the emergency blinkers, got out of the automobile, and opened the trunk to remove a flare which he intended to light in order to warn other motorists. While standing behind his vehicle, he was struck by an automobile driven by defendant Timothy J. Ferm, and suffered severe injuries as the result of which both legs were amputated.

As grounds for reversal defendant contends that the circuit court abused its discretion in denying defendant’s motion to file a late jury demand; that it is not liable for plaintiff’s injuries for the reason that neither the absence of lights nor the use of inadequate or defective lights can be held to be negligence unless it was shown that there was a defect in the street; that the evidence does not support the finding that the failure to provide lights was a proximate cause of plaintiff’s injury; and that the finding by the circuit court that the street lights were not lighted at the time of the occurrence was against the manifest weight of the evidence.

We consider first defendant’s contention that the circuit court erred in denying its motion for leave to file a demand for jury trial. The complaint was filed on August 3, 1971, and defendant’s answer was filed on September 23, 1971. Neither party demanded a jury trial. On February 11, 1974, after the case had been assigned for trial, defendant filed a motion for leave to file instanter a demand for jury trial. It was stated in the motion that on January 14, 1974, a special assistant corporation counsel had been employed to try this case; that after giving notice to all parties he had, on January 29, 1974, filed his appearance as additional counsel for defendant; and that the failure to file a jury demand with defendant’s original pleading was the result of “inadvertence and oversight of the assistant corporation counsel who was handling the case at that time.” The motion was denied on February 25, 1974, and trial of the case commenced on June 3, 1974.

The parties are not in agreement concerning what would have occurred had defendant’s motion been allowed. It is plaintiff’s position that the case would have been removed from the trial docket and thereafter would wait its turn on the jury docket, and that the trial would have been delayed for a substantial period of time. It is defendant’s contention that the case was assigned to the circuit judge who heard it and with or without a jury would have proceeded to trial within a reasonable time.

The Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 1 et seq.) in pertinent part provides:

“(1) A plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the action is commenced. A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his answer. Otherwise, the party waives a jury.” Ill. Rev. Stat. 1977, ch. 110, par. 64(1).
“On good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment.” Ill. Rev. Stat. 1977, ch. 110, par. 59.

Supreme Court Rule 183 (58 Ill. 2d R. 183) provides:

“The court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time.”

This court has consistently held that the statute regulating the right to jury trial “ ‘should be liberally construed in favor of the right and the inclination of the court should be to protect and enforce the right.’ ” (Hudson v. Leverenz (1956), 10 Ill. 2d 87, 93, quoting Morrison Hotel & Restaurant Co. v. Kirsner (1910), 245 Ill. 431, 433.) Defendant argues that following the decision of Hudson v. Leverenz the appellate courts have applied two different tests in determining whether a late jury demand should be allowed; that one line of cases (see Hernandez v. Power Construction Co. (1976), 43 Ill. App. 3d 860; Department of Public Works & Buildings v. Melling (1966), 78 Ill. App. 2d 37; Hartsock v. Bress (1963), 40 Ill. App. 2d 66; Dawson v. Maxwell (1957), 13 Ill. App. 2d 228) holds that there must be “an absence of inconvenience to the court or parties litigant and the absence of prejudice to any person in any manner whatsoever,” and the other (see Smith v. Realcoa Construction Co. (1973), 13 Ill. App. 3d 254; Johnson v. Sabben (1972), 7 Ill. App. 3d 238) that the test is not the mere absence of inconvenience or prejudice “but rather a demonstration of ‘good cause shown’ to excuse the time requirements for filing a jury demand and further that mere mistake or inadvertence is not sufficient to demonstrate good cause.” It argues further that the affidavit filed with its motion for leave to file the late jury demand alleged facts which were not controverted by plaintiff and that its showing in the affidavit that permitting the late filing of the jury demand would cause no actual inconvenience or prejudice supplied the “good cause” essential to excuse the failure to timely file the jury demand.

The most frequently cited decisions of this court involving this question are Stephens v. Kasten (1943), 383 Ill. 127, and Hudson v. Leverenz (1956), 10 Ill. 2d 87. In Stephens, it was held that the circuit court had abused its discretion in denying the defendant’s late-filed jury demand “especially since it appears from the record that the filing of such jury demand at the later date did not tend to inconvenience the court or parties litigant or prejudice any rights in any manner whatsoever. To arbitrarily refuse to accord to parties litigant the right to file a jury demand after time therefor has expired, upon good cause shown, is an abuse of the discretion of the court.” (383 Ill. 127, 135.) In Hudson v. Leverenz, the original complaint had been filed on March 3, 1954, and on October 4, 1954, there was a docket setting at which both sides were represented by counsel. At that time the case was placed on the nonjury calendar as the first case on December 13, 1954. On December 1, 1954, defendants filed a jury demand. The court pointed out that had plaintiffs known at the October 4th docket setting of the defendants’ desire for a jury trial the case could have been placed on a jury docket in November or early December. On the other hand, had the court permitted the filing of the demand in December, the earliest possible trial date would have been in February of the following year. The court pointed out: ‘That the plaintiffs would be inconvenienced by the delay was not disputed, nor did the defendants advance any reason or ‘good cause’ other than to say their failure resulted from ‘misapprehension of the facts, mistake and inadvertence.’ On this record, we do not believe the trial judge abused its discretion in refusing the request for a jury trial.” (10 Ill. 2d 87, 94.) In Village of Park Forest v. Walker (1976), 64 Ill. 2d 286, citing Hudson v. Leverenz, the court said, “Similarly, the defendant in the instant case has not demonstrated any good cause for allowance of his motion, and the trial court did not abuse its discretion in denying said motion.” 64 Ill. 2d 286, 300.

We do not agree with defendant that the showing that permitting the late filing of a jury demand would not cause inconvenience to the parties litigant or the court, or in any manner prejudice them, is sufficient to supply the requisite “good cause shown.” To so construe section 64(1) of the Civil Practice Act would in effect permit the demand to be made at any time so long as neither the court nor a litigant was inconvenienced or prejudiced. We hold, therefore, that in addition to showing that no inconvenience or prejudice would result from the late filing of the demand it was necessary that good cause be shown for failure to comply with the statute. Accord, Hernandez v. Power Construction Co. (1978), 73 Ill. 2d 90.

The determination of what constitutes good cause shown must be made upon the facts of each case, and absent an abuse of discretion the decision of the circuit court will not be disturbed. In this instance the allegation that the failure to file the demand was the result of inadvertence of an assistant corporation counsel does not furnish the basis for holding that the trial court abused its discretion.

We consider next defendant’s contention that it had no duty to maintain overhead street lights, that its only duty was to place lights warning against known or existing dangers or obstructions, and “that neither the absence of lights nor the use of inadequate or defective lights is negligence if there is no street defect.” Defendant argues that the affirmance of the appellate court’s holding will unduly extend the liability of municipalities. Plaintiff responds that once defendant elected to install lighting, the lighting must be maintained. In Johnston v. City of East Moline (1950), 405 Ill. 460, which involved a nonfunctioning traffic signal, the court said:

“As early as City of Chicago v. Powers, 42 Ill. 169, the principle was recognized that where a municipality undertakes to protect a street or bridge by lights it is liable for negligence if it does it in an insufficient manner. ***
A municipal corporation acts judicially or exercises discretion when it selects and adopts a plan in the making of public improvements, but as soon as it begins to carry out that plan it acts ministerially and is bound to see that the work is done in a reasonably safe and skillful manner.” (405 Ill. 460, 466.)

In Baran v. City of Chicago Heights (1969), 43 Ill. 2d 177, the plaintiff drove past the end of the street which ended in a “T” intersection and crashed into a tree. The plaintiff contended that the overhead street light was placed on the wrong corner, causing the intersection to be improperly illuminated. The court said: “The court has long recognized that where a city undertakes to provide lights, it is liable for injuries which result from deficient or inadequate ones. [Citations.] In holding a city responsible for injuries thus caused the court is not reviewing the city’s discretion in selecting a plan. It is not controlling or passing upon the city’s estimate of public needs. Nor is it deciding what the ‘best’ kind of improvement may be. It is simply saying that when a city creates a hazardous condition and someone is injured as a consequence it must respond in damages, just as others are required to do.” 43 Ill. 2d 177, 180-81.

We do not agree with defendant’s contention that the rule applies only when the lights are placed for the purpose of warning of a defect or hazard. In Baran, the beam of the overhead light caused a glare which affected the driver’s vision. Here, the co-defendant, Timothy Ferm, testified that he was proceeding south on Wentworth Avenue when he came to 103rd Street, where he stopped at a traffic light. As he crossed the intersection of 103rd Street the overhead street lights were no longer burning and visibility dropped from 150 feet to about 50 or 60 feet. He stated that this reduction in visibility made it difficult for him to see and that he did not see plaintiff’s automobile until he was 60 feet from it and did not know that it was stationary. The driver of the automobile immediately behind Ferm’s vehicle testified that when he crossed the intersection of 103rd Street visibility dropped suddenly from 150 feet to about 25 to 50 feet. He stated that it was so dark that he had to get out of his car in order to see what Mr. Ferm had hit. We see no basis for distinguishing the cases and hold that the rule as enunciated in Johnson and Baran is applicable to the facts shown in this record.

We consider next defendant’s contention that the finding of the circuit court that the street lights were not lighted at the time of the occurrence was against the manifest weight of the evidence. Six witnesses testified that on the date of the occurrence the lights in the vicinity of the accident were not burning. It was testified that the lights had been off for a period of several weeks, and that they had been off intermittently. A bus driver employed by the Chicago Transit Authority testified that approximately two weeks before the occurrence the bus he was driving had struck a light pole at 103rd Street and Wentworth and that after that occurrence the lights south of 103rd Street were off for approximately two months. Defendant adduced testimony to the effect that the lights were burning at the time that plaintiff was injured and that defendant’s records showed no reports of the lights having been out in that vicinity. Concerning the manner of reviewing the findings of the trial court in a bench trial in which the evidence was conflicting, the court in Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, said: “Although a trial court’s holding is always subject to review, this court will not disturb a trial court’s finding and substitute its own opinion unless the holding of the trial court is manifestly against the weight of the evidence. [Citations.] Underlying this rule is the recognition that, especially where the testimony is contradictory, the trial judge as the trier of fact is in a position superior to a court of review to observe the conduct of the witnesses while testifying, to determine their credibility, and to weigh the evidence and determine the preponderance thereof. We may not overturn a judgment merely because we might disagree with it or might, had we been the trier of facts, have come to a different conclusion.” We are unable to say that the circuit court’s findings are against the manifest weight of the evidence.

Citing Cunts v. Brennan (1974), 56 Ill. 2d 372, Winnett v. Winnett (1974), 57 III. 2d 7, and Storen v. City of Chicago (1940), 373 Ill. 530, defendant argues that assuming that the street lights on Wentworth Avenue were not lighted on the night in question, the absence of artificial lighting was not a proximate cause of plaintiff’s injury. It argues that “an ordinary driver traveling within the speed limits *** would be expected to see a stalled automobile in time to stop or turn aside within the range of his headlights *** and would be expected to see the flashing emergency lights in time to avoid a collision.” Defendant poses the question “Is it to be expected that in every unlighted roadway a vehicle will stall and that an intoxicated driver will not see it?”

In Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 380-81, the court said:

“What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is. The injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act. (Illinois Central Railroad Co. v. Oswald, 338 Ill. 270; Hartnett v. Boston Store of Chicago, 265 Ill. 331.) An intervening efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury and itself becomes the direct and immediate cause of the injury. (Illinois Central Railroad Co. v. Oswald, 338 Ill. 270; Pullman Palace Car Co. v. Laack, 143 Ill. 242.) The intervention of independent concurrent or intervening forces will not break causal connection if the intervention of such forces was itself probable or foreseeable. (Wintersteen v. National Cooperage and Woodenware Co. 361 Ill. 95; Sycamore Preserve Works v. Chicago and Northwestern Railroad Co. 366 Ill. 11.) What is the proximate cause of an injury is ordinarily a question of fact to be determined by a jury from a consideration of all of the evidence. Phillabaum v. Lake Erie and Western Railroad, 315 Ill. 131.
The rule that the causal connection between a person’s negligence and an injury is broken by the intervention of a new, independent, efficient and intervening cause so that the negligence is not actionable is subject to the qualification that if the intervening cause was foreseen or reasonably might have been foreseen by the wrongdoer, his negligence may be considered the proximate cause of the injury and he may be held liable notwithstanding the intervening cause. The intervening act of a third person does not necessarily relieve the author of an earlier negligent or wrongful act from responsibility when the intervening cause of an injury is of such nature as could reasonably have been anticipated, in which case the earlier negligent act, if it contributed to the injuries, may be regarded as the proximate cause. Garibaldi & Cuneo v. O’Connor, 210 Ill. 284; Armour v. Golkowska, 202 Ill. 144.”

Concerning the contentions with respect to Ferm’s driving while intoxicated, we find apposite the statement in Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 80, that “The intervention of a criminal act, however, does not necessarily interrupt the relation of cause and effect between negligence and an injury. If at the time of the negligence, the criminal act might reasonably have been foreseen, the causal chain is not broken by the intervention of such act.” The circuit court’s finding that defendant Ferm’s conduct was a concurrent cause of plaintiff’s injury, and not an independent and intervening cause, is not against the manifest weight of the evidence.

For the reasons stated the judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE RYAN

license: Public Domain

text:
    (No. 50179.
    ELIZABETH ANN TOWNS, Appellant, v. YELLOW CAB COMPANY et al., Appellees.

      Opinion filed October 6, 1978.

      Patrick A. Barton, of Bensenville, for appellant.
    Jesmer and Harris, of Chicago (Francis X. Riley, of counsel), for appellee Joseph Smith, Jr.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Plaintiff, Elizabeth Ann Towns, appeals from the appellate court’s affirmance of an order entered by the circuit court of Cook County dismissing plaintiff’s cause of action against defendant Joseph Smith, Jr., on the basis of res judicata.

On March 29, 1972, plaintiff was riding as a passenger in a cab owned by Yellow Cab Co., and driven by defendant Joseph Smith, Jr. While traveling south on the Dan Ryan Expressway, in Chicago, the cab became involved in a multiple-car collision which resulted in injury to the plaintiff. In November 1972 plaintiff filed a five-count complaint seeking damages against Yellow Cab, its servant Joseph Smith, Jr., and the drivers of the three other vehicles. The allegations against Yellow Cab and Smith were all contained in count I, where it was charged that Yellow Cab, acting through Smith, committed the acts of negligence set forth in that count.

Yellow Cab Co. filed an answer on December 7, 1972. It did not deny agency but denied liability. With the filing of the answer, Yellow Cab submitted interrogatories to plaintiff, which plaintiff failed to answer. Three separate orders of the court directed her to do so, but she still failed to answer. Accordingly, on May 11, 1973, the court dismissed plaintiff’s allegations against Yellow Cab with prejudice, pursuant to Supreme Court Rule 219(c) (58 Ill. 2d R. 219(c)). Plaintiff took no appeal from the order of dismissal, which was final and appealable by its terms.

Defendant Smith was not served with summons until October 22, 1973. Upon being served, Smith appeared and filed a motion for judgment, claiming that the judgment of May 11 was res judicata. After several continuances, the motion was heard by a motion judge on October 7, 1974, at which time it was denied. The case was consolidated with an action which Smith had pending against the other drivers involved in the accident, and assigned to a judge for pretrial conference.

Smith orally renewed his motion for judgment before the pretrial judge, making the same argument he had presented to the motion judge. It was his contention that Supreme Court Rule 273 (58 Ill. 2d R. 273), which in pertinent part provides that “an involuntary dismissal *** operates as an adjudication upon the merits,” served to make the order dismissing Yellow Cab an adjudication of the issues between plaintiff and defendants Yellow Cab (the master) and Joseph Smith (its servant). Contrary to the finding of the motion judge, the pretrial judge agreed with this contention and, accordingly, held that further action between plaintiff and defendant Smith was barred on the basis of res judicata. As noted above, the appellate court affirmed the decision of the trial court. (53 III. App. 3d 47.) We granted plaintiff’s petition for leave to appeal.

Plaintiff raises two issues for our consideration. First, we must decide whether it was proper for the pretrial judge to consider the defendant’s renewed motion for judgment after the motion had previously been considered and denied by the motion judge. Second, we must consider whether the trial court properly held that an adjudication upon the merits by virtue of Rule 273, in favor of defendant Yellow Cab, served to bar further action between the plaintiff and defendant Smith.

In rejecting the plaintiff’s argument that the trial court improperly considered the defendant’s renewed motion for judgment, the appellate court relied on Supreme Court Rule 304(a). That rule allows for appeals to be taken from final judgments as to one or more but fewer than all of the parties or claims if the trial court makes an express finding that there is no just reason for delaying the appeal. (58 Ill. 2d R. 304(a).) However, the rule further provides:

“In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” 58 Ill. 2d R. 304(a).

Relying on this part of Rule 304(a), the appellate court, noting that the motion judge had not found that there was no just reason for delaying an appeal from his order, categorized the trial court’s action as a revision of the nature authorized by the rule. The court, in so holding, found the plaintiff’s argument that the trial court’s action was in fact a reversal, and not a Rule 304(a) revision, to be unconvincing.

We agree with the conclusion of the appellate court that the trial court acted within the bounds of its authority in amending the motion judge’s order which refused to dismiss defendant Smith. It is not necessary, however, for us to decide whether the trial court’s action was a “revision” as the term is used in Rule 304(a). We believe that the power of the trial judge in this case to reconsider the motion judge’s order derived from the traditional power of a court to amend and revise interlocutory orders.

As noted above, Rule 304(a) provides that in the absence of an express finding by the court certifying the judgment for appeal, “any judgment that adjudicates fewer than all the claims *** is subject to revision at any time ***„” (Emphasis supplied.) 58 Ill. 2d R. 304(a).

A judgment has been traditionally defined as a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit. (49 C.J.S. Judgments sec. 5 (1947).) Because judgments are final in nature, the rule developed that judgments as to fewer than all parties or claims were not only appealable, but had to be appealed if the rights of the party against whom the judgment had been entered were to be preserved. (Ill. Ann. Stat., ch. 110A, par. 304(a), Historical and Practice Notes, at 586 (Smith-Hurd 1968).) The appeal from judgments that were obtained as to one or more but fewer than all of the parties or claims, however, resulted in undesirable fragmentary appeals. Rule 304(a), like its precursor, former section 50(2) of the Civil Practice Act (Ill. Rev. Stat. 1955, ch. 110, par. 50(2)), was designed to eliminate the absolute necessity for all such appeals by limiting the circumstances in which appeals from judgments that determine less than all of the matters involved in a case may be taken. Thus, where a judgment is entered for plaintiffs on one or more but fewer than all the counts in a multicount complaint, but the judgment does not dispose of the other counts, the judgment is not appealable in the absence of an express certification by the trial court that there is no just reason for delaying appeal. (Brown v. Whipple (1974), 16 Ill. App. 3d 850.) Such judgments are, by operation of Rule 304(a), subject to revision before entry of a judgment that does in fact adjudicate all the claims and liabilities of the parties. Highway Industries, Inc. v. Trailer Leasing Co. (1977), 48 Ill. App. 3d 235.

The significant fact remains that Rule 304(a) applies only to judgments. In the instant case, however, the finding by the motion judge was not a judgment. It did not settle or finalize any rights between the parties. A preliminary matter, that is, the sufficiency of the defendant’s defense, was considered and rejected, but this did not dispose of a separate claim between the parties. (Cf. Flynn & Emrich Co. v. Greenwood (4th Cir. 1957), 242 F.2d 737, cert denied (1957), 353 U.S. 976, 1 L. Ed. 2d 1137, 77 S. Ct. 1060, where the court of appeals held that despite the district court’s express finding of no just cause for delay for appeal from a “judgment” for plaintiff on defendant’s counterclaim of estoppel, an appeal would not lie under Rule 54(b) (the Federal counterpart of Rule 304(a)) since estoppel is a defense and not a separate claim.) Under the facts of the instant case the finding could have only resulted in a judgment if the defendant had chosen to stand on his pleadings, prompting the eventual entry of a judgment by default. That, however, is not the case.

Clearly, the finding by the motion judge was in the nature of an interlocutory order. As we have indicated, courts have the inherent power to amend and revise such orders at any time before final judgment. (49 C.J.S. Judgments sec. 230 (1947); 23 Ill. L. & Prac. Judgments sec. 308 (1956).) For example, in Leopold v. Levin (1970), 45 Ill. 2d 434, a second trial court vacated a summary judgment order which had been entered for plaintiff by the first trial court. In affirming the authority of the second trial court to vacate the summary judgment order, this court noted that summary judgments on the issue of liability only under section 57(3) of the Civil Practice Act (Ill. Rev. Stat. 1967, ch. 110, par. 57(3)) are interlocutory in character and that “interlocutory order[s] may be modified or vacated at any time before final judgment” (45 Ill. 2d 434, 446).

In the instant case, the trial court had jurisdiction over the entire controversy, and would retain jurisdiction until final judgment. While prior rulings should be vacated or amended only after careful consideration, especially if there is evidence of “judge shopping” on behalf of one who has obtained an adverse ruling, a court is not bound by an order of a previous judge (Richichi v. City of Chicago (1964), 49 Ill. App. 2d 320) and has the power to correct orders which it considers to be erroneous. Here, the cause was assigned to the second judge as a matter of procedure. The defendant could properly renew his motion, even though it had been denied by another judge, and the pretrial judge, in turn, could review and modify the first judge’s interlocutory order.

We have elected to consider the merits of plaintiff’s argument on this point. We note, however, that when Smith’s attorney renewed his argument of his motion before the pretrial judge and told the judge that he had the authority to consider the motion even though it had previously been denied by another judge, plaintiff’s counsel did not object or contest the judge’s authority to consider the motion. Instead he pursued only the merits of the motion.

The plaintiff argues that the trial judge was incorrect in finding that the dismissal of the master, Yellow Cab, compelled dismissal of the servant, Smith. Plaintiff argues that while the dismissal of Yellow Cab was an adjudication on the merits by virtue of Rule 273, the adjudication contained no specific findings as to the alleged negligence of the servant, Smith, and was not an adjudication on the merits as to him. The plaintiff concludes that since there was no adjudication on the merits as to the servant, res judicata cannot bar the action.

As we have noted, Smith’s employer, Yellow Cab, obtained a dismissal after the plaintiff refused three court orders to answer certain interrogations promulgated by Yellow Cab. The court’s action, while harsh, is not at issue here and was authorized by Rule 219(c). The ultimate effect of a dismissal pursuant to Rule 219(c) is governed by Rule 273, which provides:

“Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.” (58 Ill. 2d R. 273.)

The involuntary dismissal of Yellow Cab was for reasons other than the exceptions specified by the rule and, as such, operated as an adjudication upon the merits.

The doctrine of res judicata provides that an adjudication upon the merits rendered by a court of competent jurisdiction is conclusive as to the rights of the parties and their privies, and as to them constitutes an absolute bar to subsequent action involving the same claim, demand, or cause of action. (People v. Kidd (1947), 398 Ill. 405.) The doctrine has special applicability in suits against masters or servants. Thus, the rule has evolved that a judgment for either the master or servant, arising out of an action predicated upon the alleged negligence of the servant, bars a subsequent suit against the other for the same claim of negligence where the agency relationship is not in question. This result obtains even though the defendant in the subsequent suit was not a party to the first action and despite the fact the cases find that a master and servant are technically not in privity. (Annot., 133 A.L.R. 181, 196-97 (1941); Annot., 23 A.L.R. 2d 710, 731 (1952).) In the instant case, then, if res judicata is otherwise applicable, it is of little consequence that the defendant was not served with summons until October 1973 and was not before the court when the initial order of dismissal was entered.

The general principles discussed are adhered to in this State. In Anderson v. West Chicago Street R.R. Co. (1902), 200 Ill. 329, the plaintiff brought an action for negligence against a lessee of certain railroad property, after judgment had been entered against the plaintiff in an action against the owner railroad company on the identical claim, that is, the negligence of the lessee. After characterizing the relationship between the lessor and lessee in that case as one of master-servant, this court affirmed the general rule that res judicata would apply to bar the subsequent action against the servant. The court rejected the plaintiff’s arguments that the doctrine was inapplicable because the defendant was not a party in the first suit or was not in privity with any of the parties. This reasoning was employed years later in the case of Spitz v. BeMac Transport Co. (1948), 334 Ill. App. 508, where the appellate court, relying on Anderson, applied res judicata to bar a suit against a servant truck driver because the plaintiff had failed in an action against the employer-master predicated upon the alleged negligence of the servant.

The reasoning of these cases is sound. When an action is brought against a master based on the alleged negligent acts of his servant, and no independent wrong is charged on behalf of the master, his liability is entirely derivative, being founded upon the doctrine of respondeat superior. In this regard, it has been said that the liability of the master and servant for the acts of the servant is deemed that of one tortfeasor and is a consolidated or unified one. (Aldridge v. Fox (1952), 348 Ill. App. 96.) As such, any legal claim against the master must be said to be identical to that which the plaintiff may have asserted against the servant. The operative facts which comprise the alleged bases for liability of the master are identical to those which would prove the servant liable. Indeed, if the agency relationship is not in dispute, any act of the servant which renders the master liable also renders the servant liable. A judgment, therefore, adjudicating the master not liable, where a judgment to the contrary could have only resulted from a finding that the servant committed an actionable wrong against the plaintiff, is a judgment in legal effect that the servant is not liable. (See Caldwell v. Kelly (Tenn. 1957), 302 S.W.2d 815.) As was held in the frequently cited case of Emery v. Fowler (1855), 39 Me. 326, 63 Am. Dec. 627, to hold otherwise would allow the plaintiff to have two trials for the same cause of action.

This rationale, which summarizes the reasoning underlying the courts’ approach to res judicata as it applies to the master-servant context, is relevant to the plaintiff’s argument in the instant case. She contends that it is proper to apply res judicata to bar subsequent action against a servant only when there has been a trial and determination of the facts in the previous suit against the master. In this connection, she admits that Rule 273 may have the effect of making the dismissal against Yellow Cab an adjudication of the 'merits, but she argues that its effect was never meant to be extended to anyone other than the dismissed party. We find the plaintiff’s arguments to be unconvincing.

The effect of an involuntary dismissal of a master on a subsequent action against the servant has been considered by a Federal court in the case of Mooney v. Central Motor Lines, Inc. (6th Cir. 1955), 222 F.2d 572. In that case, an employer, who was sued for the alleged negligent acts of his servant, obtained an involuntary dismissal when the plaintiff failed to attend a deposition. Plaintiff then proceeded against the servant on the same claim of negligence, and the servant moved to dismiss pursuant to Federal Rule of Civil Procedure 41(b). Rule 41(b), upon which our Rule 273 is based, likewise provides that an involuntary dismissal, other than for reasons similar to those specified in Rule 273, “operates as an adjudication on the merits.” (Fed. R. Civ. P. 41(b).) The Sixth Circuit Court of Appeals affirmed the dismissal order, holding that an adjudication on the merits in favor of the employer, even though obtained by operation of Rule 41(b) and not as a result of trial, would serve to bar a subsequent action against the servant on the same claim of negligence.

Since Rule 273 is based upon Rule 41(b) of the Federal Rules of Civil Procedure (58 Ill. 2d R. 273, Committee Comments), we find convincing the Mooney court’s interpretation of the effect of Rule 41(b) under the circumstances presented in that case. Here, we are faced with deciding the effect of a rule patterned after 41(b), under circumstances substantially similar to those in Mooney. We find that there is no reason here to hold differently.

In our view, to accept the plaintiff’s arguments that an adjudication on the merits against a master should only bar a subsequent action against a servant when such prior adjudication results from a trial is to fail to give full force and effect to Rule 273. An adjudication on the merits is exactly that — a determination of the merits of the controversy. As we have seen, under the doctrine of respondeat superior, the claim against the master and servant are one and the same. Hence, assuming the agency relationship is admitted, a determination on the merits that the master is not liable can only mean that the claim against the servant must likewise fail. And, while the instant case did not proceed to trial, it must be admitted that the plaintiff failed in her attempt to bind the master on the same claim that she now seeks to assert against the servant.

Many of the cases cited by the plaintiff were properly distinguished by the appellate court, and it would serve no purpose to repeat the court’s discussion here. In this court, however, plaintiff cites Rice v. Ringsby Truck Lines (7th Cir. 1962), 302 F.2d 550, for additional authority in support of her position. In Rice, in a prior suit a judgment was obtained against Rice’s employer for property damage resulting from an accident in which Rice was the driver of his employer’s vehicle. The court of appeals refused to apply res judicata in a later suit by Rice for personal injuries, holding that he was entitled to his day in court. Rice involved an entirely different situation. The court also admitted that under the circumstances presented in the case it was not certain that the first verdict was based on the servant’s negligence. 302 F.2d 551, 552-53.

In summation, we feel the trial court properly applied Rule 273 to bar plaintiff’s action against Joseph Smith, Jr. This result is compelled where, as here, the master admits the agency relationship and where the pleadings charge the master with only the negligent acts of the servant. For the reasons discussed, a finding on the merits that the master is not liable is thus a determination that the servant committed no actionable wrong against the plaintiff. Accordingly, the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. JUSTICE MORAN MR. JUSTICE RYAN,

text:
    (No. 49421.
    LOIS A. CHURCHILL, Indiv. and as Adm’r, Appellee, v. NORFOLK & WESTERN RAILWAY COMPANY et al.—(Norfolk & Western Railway Company, Appellant.)

      Opinion filed Oct. 6, 1978.

    Rehearing denied Dec. 1, 1978.

      Giffin, Winning, Lindner, Newkirk, Cohen, Bodewes & Narmont, of Springfield, and James P. Reedy & Associates, Ltd., of Chicago (Richard J. Durbin and James P. Reedy, of Chicago, and Alfred F. Newkirk, of Springfield, of counsel), for appellant.
    Thomas F. Londrigan, of Londrigan & Potter, P.C., of Springfield, and Robert H. Brunsman, of Brunsman, Crain, Kenney & Pearson, of Springfield, for appellee.
    Francis D. Morrissey and Edward J. Zulkey, of Baker & McKenzie, of Chicago, for amici curia Atchison, Topeka & Santa Fe Ry. Co. et al.

      Leonard M. Ring, of Chicago, for amicus curiae Illinois Trial Lawyers Association.
   MR. JUSTICE MORAN

delivered the opinion of the court:

This action resulted from the death of Paul Churchill, who was a passenger in an automobile driven by James R. Cravens when the vehicle stalled on the tracks of the Norfolk & Western Railway, and was struck by one of its trains. Plaintiff, Lois A. Churchill, individually and as administrator of her husband’s estate, filed an eight-count amended complaint against Norfolk & Western Railway, James R. Cravens, and Chrysler Motors Corporation. Only Lois A. Churchill (plaintiff) and Norfolk & Western Railway (defendant) are involved in this appeal.

Counts I, II, V, VII and VIII went to the jury. Counts I and II, alleging negligence and wilful and wanton misconduct, respectively, were brought by plaintiff as administrator against defendant under the Wrongful Death Act (Ill. Rev. Stat. 1969, ch. 70, par. 1 et seq.). In count V, plaintiff-administrator charged Cravens with wilful and wanton misconduct. Count VII was brought by plaintiff individually against defendant under the Public Utilities Act (Ill. Rev. Stat. 1969, ch. Ill 2/3, par. 77), to recover $5,000 in hospital, medical and funeral expenses for which she became liable under the family expense act (Ill. Rev. Stat. 1969, ch. 68, par. 15). She alleged violations of the Public Utilities Act and Rule 205 of the Illinois Commerce Commission (ICC). In count VIII she repeated the allegations of count VII and sought, in addition to the hospital, medical and funeral expenses, $3 million in punitive damages for the wilful violation of the Public Utilities Act and the ICC rule.

The jury returned a verdict in favor of plaintiff-administrator for $45,000 under count I for negligence, and, by separate verdict, for $45,000 under count II for wilful and wanton misconduct. The jury’s verdict on count V exonerated Cravens. On count VII, the jury fixed the amount of the compensatory damage award to plaintiff individually at $1,600. On count VIII, however, it fixed the verdict on compensatory damages at $45,000 and included an additional $600,000 in punitive damages. The trial court allowed the verdicts on counts I, V and VII to stand. It entered judgments for defendant, notwithstanding the verdicts, on counts II and VIII.

A majority of the appellate court affirmed in part and reversed in part. (46 Ill. App. 3d 781.) It remanded the cause to the circuit court of Sangamon County with directions to enter a single judgment for $45,000 pecuniary damages on behalf of plaintiff as administrator, a judgment for plaintiff individually in the amount of $1,600 for funeral expenses, and a judgment for plaintiff individually for $600,000 in punitive damages.

On its own motion, the appellate court, pursuant to section 4(c) of article VI of the 1970 Illinois Constitution and Supreme Court Rule 316 (58 Ill. 2d R. 316), issued a certificate of importance to this court in both this case and a companion case, National Bank of Bloomington v. Norfolk & Western Ry. Co. (1977), 46 Ill. App. 3d 757, aff'd (1978), 73 Ill. 2d 160.

Our recitation of the facts is limited to those which frame the issues before us.

At 7:20 p.m. on March 17, 1970, Paul Churchill was a passenger in the front seat of owner-operator Cravens’ 1969 Dodge Charger. As Cravens’ auto approached the Dawson, Illinois, railroad crossing (which was equipped with bells and flasher signals), Cravens looked to the east, but his view was obstructed by a line of defendant’s boxcars stored on sidetracks at a distance beginning 414 feet east of the crossing. As Cravens drove onto the tracks, he noticed a train approaching from the east at 60 miles per hour. His car stalled and, about the same moment, the crossing’s flasher signals began operating. Cravens made several unsuccessful attempts to start the car, placed the car in gear and tried to move the vehicle by using the starter, attempted to warn his passenger of the on-rushing train, and, finally, abandoned his car. Immediately thereafter, the train struck the car, which exploded into flames. Churchill was killed instantly. When his body was found, it was still secured in the car by the seat belt.

According to the testimony of a State trooper who investigated the accident, Cravens reported that the train was 600 feet to the east of the crossing when he first saw it. However, in response to defendant’s interrogatory, Cravens stated that the train was approximately at the next crossing to the east (one-half mile away) when his car stalled on the tracks. This interrogatory was not read to the jury. Both the train’s engineer and its fireman concurred that the car was 500 or 600 feet away when they first saw it on the tracks. The brakeman on the train testified that the car could be seen on the tracks for one-quarter to one-half mile prior to impact, but that it was not until the train was within 500 or 600 feet of the auto that the train crew realized the car was stalled.

Another auto, traveling in the opposite direction, crossed the tracks immediately prior to Cravens’ auto. That driver testified that he heard no train whistle or bell to signal the approach of a train, and that the flasher lights were not operating when Cravens’ car approached the crossing. The train engineer testified that the whistle was sounded when the train was 900 feet from the crossing and that the engine bell was ringing.

It was shown that the defendant had been repeatedly warned of the dangerous visual obstruction created by the boxcars being stored near the crossing. On numerous occasions and once by certified letter on October 7, 1966, a neighboring school district communicated to the defendant that its bus drivers could not see up and down the tracks before crossing. The mayor of Dawson testified that he had complained to defendant about the same obstructions. Upon receiving complaints, defendant temporarily rectified the situation but then resumed the dangerous storage practice.

Of the myriad issues presented, we first review that which prompted the appellate court to certify these companion cases: In an action arising from the accident-related death of a person injured, are both compensatory and punitive damages recoverable under section 73 of the Public Utilities Act?

Section 73 of the Public Utilities Act provides:

“In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, such public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment. An action to recover for such loss, damage or injury may be brought in any court of competent jurisdiction by any person or corporation.” (Emphasis added.) (Ill. Rev. Stat. 1969, ch. Ill 2/3, par. 77.)

Defendant was found to have violated Rule 205 of General Order 138 of the ICC. The rule requires a railroad to keep its right-of-way reasonably clear of unnecessary obstructions for a minimum of 500 feet from every grade crosssing at which an obstruction would materially obscure approaching trains from the view of travelers on the highway.

Defendant initially seeks to dispose of the question by asserting that the statutory remedy in section 73 does not apply to personal injury actions. It contends that the Public Utilities Act is directed at regulating rates and services of public utilities, and that, consequently, section 73 is intended to provide a remedy only for such abuses as overcharging and preferential rates and not for safety violations at railroad crossings. We fail to find any substantiation whatsoever for this contention.

The Public Utilities Act, designed in part to promote public safety by public utilities, was originally enacted in 1913. (1913 Ill. Laws 459.) By 1925, this court had resolved that the Act directly sought to secure the public’s protection at the intersections of streets and railroads. (Village of Atwood v. Cincinnati, Indianapolis & Western R.R. Co. (1925), 316 Ill. 425.) In 1937, the ICC, pursuant to its authority under the Act, adopted General Order 138. That general order specifically imposed rules, regulations and requirements “relating to construction, maintenance, marking and protection of crossings of Highways and Railroads.” (See American National Bank & Trust Co. v. Pennsylvania R.R. Co. (1964), 52 Ill. App. 2d 406, 429, 434.) The Seventh Circuit Court of Appeals has twice held that section 73 of the Public Utilities Act clearly provides a remedy for personal injuries which result from a violation of ICC rules concerning public safety at railroad crossings. (Lippincott v. Wabash R.R. Co. (7th Cir. 1961), 295 F.2d 577; Rucker v. Wabash R.R. Co. (7th Cir. 1969), 418 F.2d 146.) We are impelled by the twin forces of statutory clarity and judicial precedent to conclude that personal injury actions, arising out of the violation of the ICC’s rules on public safety at railroad crossings, are cognizable under section 73 of the Public Utilities Act.

Defendant contends that even if section 73 of the Public Utilities Act recognizes a cause of action against a public utility for violations which result in personal injury, no cause of action exists when such violations result in death. We believe defendant has reached this anomalous conclusion by confusing plaintiff’s causes of action under the Public Utilities Act (counts VII and VIII) with the wrongful death actions brought in counts I and II. The causes of action are separate and distinct.

Counts VII and VIII were brought by plaintiff in her own behalf, not as a representative of the decedent as would be true in a wrongful death action. Plaintiff, on the basis of the financial injury she personally incurred, sought both compensatory and punitive damages directly under the Public Utilities Act. In order to avoid confusion with the wrongful death counts, counts VII and VIII should be regarded as actions brought against the defendant, whose wrongful and wilful violation of the Public Utilities Act, resulting in another’s death, caused injury to plaintiff.

Twenty years ago there would have been no such distinction inasmuch as the Wrongful Death Act was deemed to be the exclusive remedy against a defendant whose wrongful act resulted in another’s death. (Holton v. Daly (1882), 106 Ill. 131, 140.) In 1960, that proposition was rejected because it was based on the anachronistic and misunderstood principle that there is no right of recovery after the death of an injured person. (Saunders v. Schultz (1960), 20 Ill. 2d 301, 306; see Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 426.) In Saunders, this court clarified the distinction.

“[T]here is presently no legally cogent reason for denying a spouse the right to recover for medical and funeral expenses incurred on behalf of a mate who was wrongfully injured or killed. The rule denying such recovery originated as a corollary of the archaic common-law rule that there could be no recovery for the death of a human being, which is no longer the law. Moreover, under the present status of the law, a surviving spouse is personally liable under family expense statutes for the medical and burial expenses incurred on behalf of a husband or wife. Viewing the situation realistically, this liability of the surviving spouse for such expenses constitutes very real damages. Since that liability results from defendant’s tortious conduct, it is only legally sound, and in accordance with basic negligence principles, that the burden of such damages should fall, not on the innocent victim, but upon the tortfeasor.” (Emphasis added.) Saunders v. Schultz (1960), 20 Ill. 2d 301, 309-10.

The Saunders decision stands for the general proposition that actions independent of the Wrongful Death Act may be brought against a defendant whose wrongful act resulted in another’s death. Saunders itself permitted a spouse to recover, under the common law, for the medical and funeral expenses of her deceased husband — expenses for which she was liable under the family expense act (Ill. Rev. Stat. 1955, ch. 68, par. 15). In Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, which expressly overruled Holton v. Daly, this court held that the administrator of the decedent’s estate could, independent of the Wrongful Death Act, bring an action for damages which would encompass decedent’s lost wages, lost property, and pain and suffering endured during the nine days between injury and death.

It is clear that, under the Public Utilities Act, plaintiff herein is a person “affected” by defendant’s wrongful act in that she individually suffered “loss, damages or injury” in an amount which the jury determined to be $1,600. There is no indication that persons “affected” by the wrongful act are only those who are physically injured as the proximate result of the wrongful act. Generally, a person “affected” by a wrongful act is one who shows a direct personal interest in the matter as opposed to one whose interest is merely in common with that of the general public. The issue may be expressed as one of standing. Plaintiff has standing to bring her action against the defendant under the Public Utilities Act because defendant’s wrongful act caused her to sustain precisely the “very real damages” which this court countenanced in Saunders. Plaintiff’s financial loss is independent of the fatal injury which her husband sustained and is to be compensated separately under the Act. Therefore, we hold that a spouse may recover under the Public Utilities Act those compensatory damages for which she becomes liable as a proximate result of defendant’s wrongful act.

The Act also provides that “if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment.” (Ill. Rev. Stat. 1969, ch. Ill 2/3, par. 77.) Despite the plain language of the Act, defendant contends that, even if plaintiff is entitled to compensatory damages under the Act, she may not recover punitive damages. Defendant refers to various legislative enactments in an attempt to show that whenever the legislature contemplated a cause of action for death, it limited recovery to compensatory or pecuniary damages. (See Liquor Control Act (Ill. Rev. Stat. 1977, ch. 43, par. 135); Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 69); Wrongful Death Act (Ill. Rev. Stat. 1977, ch. 70, par. 2); and Coal Mining Act (Ill. Rev. Stat. 1977, ch. 9614, par. 1007).) Each of these enactments compensates the surviving spouse and heirs for the loss of life of the decedent. We reemphasize that plaintiff here is seeking punitive damages directly under the Public Utilities Act on the basis of the financial loss she personally incurred, not on the basis of the loss of life of her husband. Therefore, defendant is incorrect in its reliance upon the compensatory or pecuniary aspects of legislation directed toward compensating a spouse for loss of life. The Public Utilities Act expressly authorizes additional recovery by way of punitive damages to any person affected by defendant’s wilful and wrongful conduct.

It is not the intent of this court either to condemn or to advance the recovery of punitive damages in tort cases. Neither is it our function to rewrite the product of the General Assembly so as to deny punitive damages to a plaintiff whose compensable injury resulted from the very type of misconduct which the legislature hoped to eradicate by authorizing punitive recovery. The record in this case clearly reveals that the substantial punitive award was made to punish a defendant railroad company that had utterly disregarded pleas of local officials and citizens to remove its dangerous obstructions and to reassure the public that such indifference to public safety would not be repeated by the defendant or other railroad companies in the future. It would be incongruous indeed to preclude, as defendant suggests, the recovery of punitive damages by a plaintiff who has sustained compensable injury as a result of defendant’s wilful and wrongful act merely because defendant’s act also resulted in the death of plaintiff’s husband. We therefore hold that both compensatory and punitive damages may be recovered against a defendant whose wrongful and wilful violation of the Public Utilities Act, resulting in another’s death, caused injury to the plaintiff.

During trial, defendant attempted to call co-defendant Cravens as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 60), and to have Cravens’ answers to certain interrogatories read to the jury as admissions against Cravens’ interest. Plaintiff objected on two grounds. First, she insisted that Cravens’ testimony was being introduced not to shift responsibility for the accident to Cravens, but to suggest that decedent, Paul Churchill, was guilty of contributory negligence. Second, she contended that Cravens’ testimony would not be competent against plaintiff as administrator because section 2 of the Evidence Act (Ill. Rev. Stat. 1969, ch. 51, par. 2) prohibits testimony of any interested party from being used against an administrator of a decedent’s estate. The trial court ruled in accord with plaintiff’s second position and permitted Cravens’ testimony to be admitted only against plaintiff individually and not against plaintiff as administrator in counts I, II and V. Defendant posited that it was entitled to cross-examine Cravens fully under all counts and made an offer of proof.

During the conference on jury instructions, plaintiff offered to withdraw her objection and to permit defendant to reopen its case for the purpose of calling Cravens under section 60. Defendant declined to do so, contending that the prejudice could not, at that point, be overcome by allowing it to reopen its case and present Cravens’ testimony. The trial court noted in its memorandum opinion that plaintiff’s offer to withdraw the objection preceded closing arguments, and expressly found that its earlier ruling on the objection had not so prejudiced the defendant that it could not have been cured at that point. Certainly, it was well within the court’s discretion to allow defendant’s case to be reopened prior to closing argument. We agree with the trial and appellate courts that, under the circumstances, the assignment of error became moot when plaintiff agreed to withdraw all objections to Cravens’ competency and the trial court provided defendant the opportunity for such evidence to be considered by the jury.

Defendant urges that it was error to admit evidence that on prior occasions railroad cars had been left within 500 feet of the crossing and to admit evidence of previous accidents which had occurred at the same crossing under somewhat similar conditions. Its position is that the only relevant issue was whether, at the time of the instant accident, there was a violation of the ICC’s Rule 205 which prohibited obstructions within 500 feet. We disagree. We acknowledge that the evidence of prior violations of Rule 205 and of accidents resulting therefrom could not be admitted for the purpose of showing independent acts of negligence. (Moore v. Bloomington, Decatur & Champaign R.R. Co. (1920), 295 Ill. 63, 67; Evans v. Pennsylvania R.R. Co. (3d Cir. 1958), 255 F.2d 205, 209-10; Annot., 70 A.L.R.2d 167, 188 (I960).) Nevertheless, such evidence is admissible if it tends to establish other matters pertinent to plaintiff’s case. The record reveals that such evidence was admitted for the limited purpose of establishing defendant’s knowledge of and disregard for the dangerous condition caused by such obstructions. Because the wilfulness of defendant’s conduct was in issue, it was proper to admit evidence which-tended to show that defendant’s conscious disregard for the safety of the public had resulted in yet another accident at the same railroad crossing. See McCormick, Evidence sec. 200, at 474-75 (2d ed. 1972); accord, Rucker v. Wabash R.R. Co. (7th Cir. 1969), 418 F.2d 146, 152-53.

Defendant also complains of the admission of testimony elicited to show that the flasher lights at the crossing failed to operate properly on two occasions after the date of the accident. It is clear that faulty operation on a later date does not tend to prove that the flashers were malfunctioning on the date in question. However, the testimony was not introduced for such purpose. It was introduced to rebut the expert testimony of a defense witness who opined that it was impossible for the flasher system to malfunction. For that limited purpose, the testimony was properly admitted.

Defendant maintains that, as a matter of law, Paul Churchill failed to exercise due care in preventing his fatal injury, and defendant’s violation of Rule 205 was not a proximate cause of that fatal injury. No special interrogatories were submitted to the jury on these issues; therefore the jury’s determination resides in its verdicts against defendant.

On the issue of due care, plaintiff requests that the court hold that contributory negligence is not a bar to recovery under the Public Utilities Act. We need not resolve this as a question of law, for we defer to the jury’s determination that Churchill was not, in fact, contributorially negligent. There is, of course, no prophylactic rule of law which directs that any particular act be done or omitted by a passenger finding himself in a position of danger. This court has cautioned:

“‘What conduct on the passenger’s part is necessary to comply with this duty must depend upon all the circumstances, one of which is that he is merely a passenger having no control over the management of the vehicle in which he is being transported. Manifestly, the conduct which reasonable care requires of such passenger will not ordinarily, if in any case, be the same as that which it would require of the driver. While the standard of duty is the same, the conduct required to fulfil that duty is ordinarily different because their circumstances are different.’” Hatcher v. New York Central R.R. Co. (1959), 17 Ill. 2d 587, 593, quoting Rhoden v. Peoria Creamery Co. (1934), 278 Ill. App. 452, 464-65.

Here, the record reflects that Churchill, who was familiar with the crossing, was 62 years old and hard of hearing. There was evidence from a disinterested witness that the flasher lights and bells at the crossing were not in operation when the car in which Churchill was riding entered the crossing. Failure of the lights and bells to function could well constitute an invitation to cross. (Langston v. Chicago & North Western Ry. Co. (1947), 398 Ill. 248, 253-54; Humbert v. Lowden (1944), 385 Ill. 437, 443.) Certainly, a passenger who is aware that a crossing is equipped with a flasher signal is not negligent as a matter of law if he fails to look up and down the track for on-coming trains when he had no reason to anticipate a train’s approach.

Once the car stalled on the tracks, did Churchill, as a matter of law, fail to exercise reasonable care for his own safety? The evidence reveals that Churchill had only a matter of seconds to extricate himself from the seat belt and to escape harm. The law recognizes that, in a moment of unexpected emergency and imminent danger, a person is not held to the same degree of prudence that is expected of one with time for reflection and deliberation. (Chicago & Alton R.R. Co. v. Corson (1902), 198 Ill. 98, 102; Darby v. Checker Co. (1972), 6 Ill. App. 3d 188, 194; 1 J. Dooley, Modern Tort Law sec. 4.17, at 97 (1977).) We cannot conclude that Churchill’s conduct constituted contributory negligence as a matter of law. Therefore, the jury’s determination that Churchill was not contributorially negligent must remain undisturbed.

On the issue of proximate cause, defendant asserts that the stalling of the car on the tracks was the sole proximate cause of the fatality. Defendant does not develop this assertion and actually argues that Churchill’s failure to extricate himself from a perilous situation was also a proximate cause of his fatal injury. Defendant’s internal contradiction prompts one conclusion: reasonable men could well disagree as to the proximate cause or causes of his death. Therefore, we do not encroach upon the jury’s determination that the obstructing boxcars were a proximate cause of the accident.

Defendant also contends that by rejecting nine of its tendered instructions the trial court effectively prevented the jury from considering its theory of the case. Each was a non-IPI instruction, largely repetitive of given IPI instructions which fairly and accurately stated the applicable law. We conclude that the jury was thoroughly and properly instructed on all the issues in dispute.

Defendant, citing Eggimann v. Wise (1963), 41 Ill. App. 2d 471, next argues that the verdicts finding it guilty of negligence under counts I and VII are, in effect, verdicts finding it not guilty of wilful and wanton conduct under counts II and VIII; that since the jury returned verdicts against the defendant under all four counts, the verdicts as to counts II and VIII must be set aside as inconsistent with the verdicts of counts I and VII.

In Eggimann, as here, the plaintiff pleaded one count for ordinary negligence and another for wilful and wanton misconduct. The jury, in a single verdict, found against the defendant under both counts. The verdict was reversed because the jury had been instructed as to the burden of proof only under the negligence count and was erroneously instructed as to the form of verdict. The jury was thereby prevented from separately finding for the plaintiff in only one of the two counts presented. In the instant case the jury was given separate instructions and separate verdict forms, and it returned separate verdicts on each count.

Defendant quotes Eggimann, saying:

“[N]egligence, and wilfulness are unmixable; a verdict finding the defendant guilty of negligence is, in effect, a verdict finding the defendant not guilty of wilfulness and wantonness; negligence is not wilfulness or wantonness, and wilfulness or wantonness is not negligence: (citations).” (Eggimann v. Wise (1963), 41 Ill. App. 2d 471, 483-84.)

We limitedly agree with the rationale in Eggimann to the extent that negligence and wilful misconduct are not synonomous. They are not, however, in every instance, mutually exclusive.

When a jury, faced with assessing ordinary negligence or wilful and wanton misconduct, returns a general verdict, it must be presumed that the defendant has been found guilty of wilful and wanton misconduct. (Trumbo v. Chicago, Burlington & Quincy R.R. Co. (1945), 389 Ill. 2d 213, 221; Greene v. Noonan (1939), 372 Ill. 286, 291.) We cannot reach a lesser conclusion simply because, here, the jury brought in a separate verdict on each count. We will not ignore the jury’s intent in returning, on count II, an express finding that the defendant was guilty of wilful and wanton misconduct inasmuch as the pleadings, proof and instruction were proper and commensurate with such verdict. Counts I and II arose from a wrongful death action under which there can be but one recovery. For these reasons, the $45,000 verdict for pecuniary damages under count II must stand.

Finally, defendant claims that the entire verdict under count VIII must be set aside and cannot be cured by remittitur. It first argues that the $45,000 compensatory award under count VIII was the sympathetic response of a jury prejudiced against the defendant by evidence of earlier accidents and the later malfunction of the crossing signals. As we have alreády indicated, such evidence was properly admitted. The manner in which the case was tried and submitted did not tend to prejudice the jury.

Defendant further argues that the jury’s verdicts on counts VII and VIII, regarding the award of compensatory damages, are inconsistent and bear no reasonable relationship to the damages suffered by the plaintiff; that the compensatory damages awarded under count VIII are almost 30 times the damages proved by plaintiff’s claim, under the family expense act, under count VII; and that, as a result, the entire verdict under count VIII must be set aside.

Both counts VII and VIII, brought under the Public Utilities Act, allege plaintiff’s damages to be those debts incurred under the family expense act — hospital, medical and funeral expenses which resulted from the death of her husband. The evidence at trial proved these expenses, and the jury’s verdict on count VII reflected such proof by awarding plaintiff compensatory damages in the amount of $1,600. Defendant does not quarrel with this finding. Under count VIII, however, the jury awarded compensatory damages in the amount of $45,000. This second award was based upon the same elements of proof allowed plaintiff under count VII. Defendant correctly states the rule of law that a verdict must be set aside where the amount of the verdict bears no relationship to the loss suffered by the plaintiff. Under such rule, that portion of the jury’s verdict which awarded compensatory damages of $45,000 under count VIII is in error and must be set aside.

Verdicts are to be liberally construed and may be amended to conform to the pleadings and evidence contained in the record whenever the intention of the jury is clear. (Manders v. Pulice (1970), 44 Ill. 2d 511, 517; Western Springs Park District v. Lawrence (1931), 343 Ill. 302, 310-11.) Amending a verdict is not the same as entering an order of remittitur. The jury clearly intended to award plaintiff punitive damages, and the record substantiates such finding. Therefore, that portion of the verdict will stand.

For the reasons stated, the judgment of the appellate court is affirmed. The cause is remanded to the circuit court of Sangamon County with directions to enter a judgment for the plaintiff, as administrator, for pecuniary damages in the amount of $45,000; to enter a judgment for plaintiff, individually, for compensatory damages in the amount of $1,600; and to enter a judgment for plaintiff, individually, for punitive damages in the sum of $600,000.

Affirmed and remanded, with directions.

MR. JUSTICE RYAN,

dissenting:

In this case, and in National Bank of Bloomington v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, we have been called upon to define the proper office of punitive damages, under the Public Utilities Act in particular (Ill. Rev. Stat. 1969, ch. Ill 2/3, par. 77), and to consider the incidental relationship of punitive damages under that Act to recovery under the Survival Act (Ill. Rev. Stat. 1969, ch. 3, par. 339, now Ill. Rev. Stat. 1977, ch. 11014, par. 27 — 6) and the right of recovery for expenses incurred under the family expenses statute (Ill. Rev. Stat. 1969, ch. 68, par. 15, now Ill. Rev. Stat. 1977, ch. 40, par. 1015). This we are required to objectively do in the emotionally charged climate of two wrongful deaths, keeping in mind that unlike the verdict of a jury, the decisions we reach not only define the law of these cases, but stand as precedent for future related matters which may be less appealing to one’s sympathies. I feel that a majority of my colleagues have failed in their performance of this charge and have either intentionally or inadvertently radically departed from principles of law that have had a long history of acceptance, which departure, I fear, will invite further assaults upon accepted limitations on punitive damages and on recovery for wrongful death. I must therefore dissent.

It is not necessary in this dissent to present the complete historical metamorphosis of the doctrine of punitive damages. It is sufficient to note that such damages were early considered in the nature of a compensatory award, then as a combination of compensatory and punitive, and finally, in a majority of jurisdictions, as purely punitive. Although a few jurisdictions still consider the compensatory role of exemplary or punitive damages, since the concept of actual damages has been broadened to include intangible harm, the originally compensatory function of exemplary or punitive damages in most instances has been fulfilled by actual damages. Therefore, most courts today speak of exemplary or punitive damages exclusively in the terms of punishment and deterrence. Illinois has followed this historical development to this conclusion. (Note, Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517 (1957).) Although it is well settled that punishment and deterrence are the objectives of punitive damages, the circumstances that warrant such an award are not clear. (McKillip, Punitive Damages In Illinois: Review And Reappraisal, 27 DePaul L. Rev. 571 (1978).) I fully agree with the remark of one author who stated that “[t]he punitive damages doctrine, reasonably identifiable at its core, is highly nebulous at its margins” (Long, Punitive Damages: An Unsettled Doctrine, 25 Drake L. Rev. 870, 871 (1976)).

The doctrine of exemplary or punitive damages has been severely criticized and four states have, by judicial decisions, completely rejected it. Statutes in some States have eliminated such damages in certain situations. (See e.g. Ill. Rev. Stat. 1977, ch. 40, par. 1803 (breach of promise); Note, Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517, 518 (1957).) The doctrine of punitive damages is not favored by law (Brown v. Coates (D.C. Cir. 1958), 253 F.2d 36, Annot., 67 A.L.R.2d 952 (1959)), and the power of giving punitive damages should be exercised with great caution and they should be properly confined within the narrowest of limitations (J. Stein, Damages and Recovery, Personal Injury and Death Actions sec. 183 (1972)).

Not only does the established authority require that punitive damages be confined to the narrowest limits but in our cases we are considering the allowance of punitive damages as provided for in the provisions of section 73 of the Public Utilities Act (Ill. Rev. Stat. 1969, ch. Ill 2/3, par. 77). Being statutory in nature, there are further limiting considerations. This court has held that the Public Utilities Act is in derogation of the common law and nothing is to be read into it by intendment (Consumers Sanitary Coffee & Butter Stores v. Commerce Com. (1932), 348 Ill. 615, 618). In Anderson v. Board of Education (1945), 390 Ill. 412, 422, this court held that a statute creating a new liability must be strictly construed in favor of the persons sought to be subjected to its operation. Section 73 of the Public Utilities Act creates a statutory authorization for the award of punitive damages and in our cases under these authorities must be strictly construed in favor of the railroad.

In spite of these accepted principles requiring a narrow application of the allowance of punitive damages and a strict construction of section 73, the opinions in this case and in National Bank of Bloomington leave me with the distinct impression that the majority of this court has been deliberately searching for some basis which logically will support awards of punitive damages and, at the same time, circumvent the prohibition previously acknowledged by this court against the awarding of punitive damages under the Wrongful Death Act (Ill. Rev. Stat. 1977, ch. 70, par. 1 et seq.), and under the Survival Act (Ill. Rev. Stat. 1977, ch. 11014, par. 27—6). In this case, the opinion finds that the family expense statute (Ill. Rev. Stat. 1969, ch. 68, par. 15, now Ill. Rev. Stat. 1977, ch. 40, par. 1015) provides the means for awarding punitive damages for a wrongful death. I am convinced that by the use of this device and the strained construction of the Survival Act in National Bank of Bloomington, these opinions have opened the door for the award of punitive damages in almost every wrongful death action involving a public utility and for an assault generally upon the prohibition against punitive damages in wrongful death cases in general. As appealing, and possibly as justified, as that result may be, it is a change which the legislature should make in the Wrongful Death Act, which has always spoken strictly in terms of compensatory damages and has been so construed.

Although the opinion speaks of the “very real damages” Mrs. Churchill suffered in the amount of $1,600 property damages as a consequence of her husband’s death, as being the basis for punitive damages, there can be no doubt that punitive damages in this case were not awarded to her because of the conduct of the railroad in causing her a $1,600 property loss. The punitive damages were awarded to her because her husband was killed as a result of the alleged wrongful conduct. If the jury were to consider a $1,600 property loss of the wife, divorced from any consideration of the wrongful death of her husband-let us say for damages to her automobile in that amount — an award of $600,000 punitive damages would be ludicrous.

The jury in this case, being unfamiliar with the niceties of the distinction between an award for family expenses and an award for wrongful death, plainly awarded punitive damages for the wrongful death and not for the wife’s property damage. Counts I and II were both wrongful death counts and in both the jury awarded $45,000. Count VII was an action by the wife individually to recover expenses for which she was obligated under the family expense statute. The jury awarded her $1,600. In count VIII the wife sought recovery for her expenses under the family expense statute, as she did in count VII, and also for punitive damages. The jury verdict in this count awarded compensatory damages, not in the amount of $1,600 which they allowed in count VII, but $45,000, which was the amount of damages they awarded for wrongful death in counts I and II. They then added to this amount $600,000 punitive damages. Plainly, the jury awarded punitive damages for wrongful death and not because the wife had suffered “very real damages” under the family expense statute.

Generally, punitive damages are allowed only to the immediate person receiving the injury. (Fleming Oil Co. v. Watts (Tex. Civ. App. 1946), 193 S.W.2d 979; People v. Superior Court of Los Angeles County (1973), 9 Cal. 3d 283, 507 P.2d 1400, 107 Cal. Rptr. 192; Dugar v. Happy Tiger Records, Inc. (1974), 41 Cal. App. 3d 811, 116 Cal. Rptr. 412; French v. Orange County Investment Corp. (1932), 125 Cal. App. 587, 13 P.2d 1046; 22 Am. Jur. 2d Damages sec. 254; J. Stein, Damages and Recovery, Personal Injury and Death Actions sec. 189 (1972).) The majority opinion holds that the wife can recover punitive damages because of her obligation to pay the expenses occasioned by her husband’s death; however, it has been held in an action for consequential damages resulting from the injury to a wife that the husband can recover compensatory damages only, and cannot recover punitive damages. (Martin v. Story (Fla. Dist. Ct. App. 1957), 97 S.2d 343; Moran v. Stephens (Fla. Dist. Ct. App. 1972), 265 S.2d 379; 41 Am. Jur. 2d Husband and Wife sec. 455.) In Hughey v. Ausborn (1967), 249 S.C. 470, 154 S.E.2d 839, the husband sought to recover punitive damages for medical expenses incurred by him as a result of injuries to his wife and son in an automobile accident. The Supreme Court of South Carolina held that punitive damages could be recovered only by the parties directly injured, the wife and son. The father’s recovery for the consequential damages he suffered as a result of those injuries was confined to his pecuniary loss, and he could not recover punitive damages. This appears to be the holding in most of the jurisdictions that have considered this question. (See Annot., 25 A.L.R.3d 1416 (1969).) It was also the holding in an early Illinois appellate case. In Baltimore and O. S.-W. Ry. Co. v. Keck (1899), 89 Ill. App. 72, a father sought to recover damages he suffered as a consequence of an injury to his son when the son’s foot caught in a railroad crossing and he was injured by an oncoming train. The court held that the father was entitled to recover only the loss he sustained on account of the injury to his son, including medical expenses. He could not recover exemplary damages.

The recovery in our case is sought not under the common law but under the provisions of section 73 of the Public Utilities Act, which provides that in the event of a violation of the Act or of a rule, regulation, order or decision of the Commission by the public utility, it shall be liable “to the persons or corporations affected thereby” (Ill. Rev. Stat. 1969, ch. Ill 2/3, par. 77) and if the act or omission is found to be wilful, exemplary damages may be awarded. This provision presents the question of whether the limitations on the award for punitive damages under the common law, as stated in the authorities cited above, prohibit the recovery of punitive damages under the Act by those who have suffered only consequential damages as a result of a violation by the utility.

Although I have found no cases directly in point, there are several cases which hold that statutes similar to section 73 of our Public Utilities Act are merely declarative of the common law and confer no right upon citizens which they would not already have by reason of the common law. This was the holding in Cole v. Arizona Edison Co. (1939), 53 Ariz. 141, 86 P.2d 946, in which the Arizona Supreme Court construed a statute of that State which was almost identical to section 73 of our Public Utilities Act. That statute is now found in 12 Arizona Revised Statutes Annot., sec. 40—423. Also, in Downs v. Sulphur Springs Valley Electric Cooperative, Inc. (1956), 80 Ariz. 286, 297 P.2d 339, the Supreme Court of Arizona again construing the same statute, stated that in a tort action based on negligent conduct the statute merely reaffirms and reiterates the common law. Indiana has a statutory provision similar to our section 73 except it does not provide for the recovery of punitive damages. (Ind. Code Ann. 1973, sec. 8—1—2—107.) In Trustees of Jennie De Pauw Memorial Methodist Episcopal Church v. New Albany Waterworks (1923), 193 Ind. 368, 140 N.E. 540, the Supreme Court of Indiana held that the statute would not enlarge the rights possessed under the common law. In H.R. Moch Co. v. Rensselaer Water Co. (1928), 247 N.Y. 160, 159 N.E. 896, in construing the provisions of a New York statute which imposed a duty upon the utility to furnish water upon demand, Chief Justice Cardozo, writing for the court, stated that if the defendant may not be held for a tort at common law, there was no reason for holding that it may be held under the statute.

The general rule is that statutes authorizing the recovery of punitive damages must be strictly construed and that such damages cannot be awarded unless the giving provision of the statute expressly or by clear implication confers the right to such damages. (Downs v. Sulphur Springs Valley Electric Cooperative; Stein, Damages and Recovery, Personal Injury and Death Actions sec. 183 (1972).) The majority opinion in our case finds that Mrs. Churchill is a “person affected” by a violation of the Act because of her “very real damages” under the family expense statute. (73 Ill. 2d at 139-40.) The Public Utilities Act should not be so broadly construed. The damages she suffered were only consequential damages which, under the common law, would not support an award of punitive damages. The term “affected” by a violation is used in the Act instead of the words “injured” or “damaged” because of the many kinds of activities covered by the Public Utilities Act and the regulations. Certainly, it was not the intention of the legislature to extend the right to recover under section 73 to every person or corporation that may be consequentially “affected” by a violation of the Act. The term “affected” under the general rule, should be narrowly construed to mean no more than the person directly injured or “affected” as a result of the violation. If we extend the right of recovery, as did the majority opinion, then in the event that Mr. Churchill would not have been killed, he could have maintained an action under section 73 for punitive damages because of his direct injury, and his wife, as one “affected” by virtue of her consequential damages would have an equal right to maintain an action for punitive damages. The language of the statute does not expressly, or by clear implication, grant the right to punitive damages or even the right to maintain an action for damages to those who are only indirectly or consequentially “affected.” I do not believe that, through construction, the right of action under section 73 should be extended that far.

All of the authorities referred to above establish the principles that .punitive damages are to be narrowly awarded; that penal statutes and statutes in derogation of the common law are to be strictly construed, and that punitive damages provided by statute should not be awarded unless the statute expressly, or by clear implication, confers the right to such damages. These established principles lead me to the conclusion that punitive damages under section 73 should be awarded only to those who are directly or immediately injured by the violation and not to those who are only consequentially affected, as was Mrs. Churchill in this case. As for her right to recover her consequential damages, this right she possesses under the common law by virtue of the wrongful injury and death occasioned by the railroad.

Not only is a limited application of the Act, which I urge, in keeping with the generally accepted principles noted above, but there is no need for a more expansive interpretation. We should keep in mind that punitive damages are not compensatory, but are awarded solely to punish the utility for the conduct which caused the injury and to deter it and others from similar conduct in the future. The recovery of punitive damages, therefore, constitutes a windfall to a recipient. It is my belief that such a windfall should be awarded only to those who are directly injured as a result of the violation and not to someone who is only consequentially affected. This is particularly true where there are other adequate means of accomplishing the same twin purposes of punishment and deterrence. Why should a person who suffers a $1,600 property loss as a consequence of a direct injury to someone else receive a windfall of $600,000 when by a proper enforcement of existing statutes the penalty could be recovered for the benefit of the public?

Deterrence or a prevention of the wrongfull conduct under the facts of our case can be accomplished by the use of section 75 of the Public Utilities Act (Ill. Rev. Stat. 1969, ch. Ill 2/3, par. 79), which authorizes the Commerce Commission to bring an action for mandamus or injunction against a public utility for the purpose of stopping or preventing any violation. Not only is the Commission authorized to do this, but the statute states the Commission shall commence an action in such cases. If the Commission fails to take the necessary steps to prohibit the violation it would appear that an action for mandamus would lie to compel it to do so. See City of Wheaton v. Chicago, Aurora and Elgin Ry. Co. (1954), 3 Ill. App. 2d 29; People ex rel. Schweder v. Brady (1915), 268 Ill. 192.

The objective of punishing the railroad for such violations can be accomplished by the use of sections 76 and 77 of the Act (Ill. Rev. Stat. 1969, ch. Ill 2/3, pars. 80, 81), which provide that public utilities may be fined not less than $500 nor more than $2,000 for each offense; that every violation shall constitute a separate offense; and in case of a continuing violation, each day’s continuance shall be a separate and distinct offense. If, as plaintiff contends in support of the charge that this was an aggravated situation, the railroad has permitted the obstruction of this crossing for a number of years, the fine assessable under sections 76 and 77 could be as much as, if not more than, the punitive damages awarded in this case. In view of the availability of these adequate means of accomplishing the objectives of deterrence and punishment, I cannot see the necessity of diverting the penalty from the public treasury and conferring it in the form of a windfall award of $600,000 on a person who has suffered only a consequential property damage of $1,600.

Although the question concerning the verdict is not within the primary thrust of this dissent, I wish to briefly again refer to the confusion of the jury as manifested by the verdict returned as to count VIII. As previously noted, the verdict indicates that punitive damages were allowed for wrongful death and not for the family expenses incurred by the wife. The majority opinion, in what I consider to be a rather cavalier manner, simply struck that portion of the verdict that awarded $45,000 compensatory damages and permitted the remainder of the verdict to stand. A court has no authority to amend a verdict as to a matter of substance (89 C.J.S. Trial sec. 515), such as here striking the award of all compensatory damages. An amendment must be such as to make the verdict conform to the real intent of the jury. The jury’s actual intent, and not the court’s idea of what the jury ought to have intended, is the end that must be accomplished by the amendment. (Roadruck v. Schultz (1948), 333 Ill. App. 476.) The fact that the jury awarded punitive damages in conjunction with compensatory damages of $45,000 and not $1,600 clearly shows that the punitive damages were awarded for wrongful death. The majority opinion justifies the amendment by stating that “[t]he jury clearly intended to award plaintiff punitive damages.” (73 Ill. 2d at 148.) With this I agree, but the jury, at least as I see it, plainly intended to award those punitive damages to the plaintiff for wrongful death of her husband. I fear that this opinion establishes dangerous precedent concerning authority of a court to tamper with and alter verdicts, and to invade the province of the jury.

In conclusion, to avoid a misconception, I wish to state that I do not oppose the general principle of punitive damages, nor do I join in their general condemnation. (See Long, Punitive Damages: An Unsettled Doctrine, 25 Drake L. Rev. 870, 888 (1976).) In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 1 authored an opinion which created a cause of action for punitive damages in a factual situation wherein I felt they were required. In situations where the conduct is reprehensible and the penalties otherwise provided are inadequate to either deter or to punish, punitive damages may serve a useful public purpose. Since their purpose is to serve the public functions of punishment and deterrence and not the private purpose of compensation to an injured person, I do not believe punitive damages should be awarded as a windfall to someone who is not directly injured by the extreme conduct which is the basis for the award. Therefore, attempting to view this case objectively, divorced from any consideration of the wrongful death involved, I cannot agree with the expansive treatment accorded section 73 of the Public Utilities Act by the opinion of this court.

MR. JUSTICE UNDERWOOD joins in this dissent.