Contributary Negligence Defense In a Case of Personal Injuries and Wrongful Death Resulting from Car Accidents

2In Barthel v. Illinois Central Gulf R.R. Co., 74 Ill. 2d 213, 384 N.E.2d 323, 23 Ill. Dec. 529 (1978), the plaintiffs sued for personal injuries and wrongful death resulting from a collision between a car and one of the defendant's freight trains. Illinois Bell Switching Station, 161 Ill. 2d at 239, citing Barthel, 74 Ill. 2d 213, 384 N.E.2d 323, 23 Ill. Dec. 529. The Barthel plaintiffs sued under section 5-201 (then section 73) of the Act, alleging violations by the defendant of various regulations relating to the safety of railroad crossings. Illinois Bell Switching Station, 161 Ill. 2d at 239, citing Barthel, 74 Ill. 2d 213, 384 N.E.2d 323, 23 Ill. Dec. 529. The Barthel plaintiffs argued that when the Illinois legislature stated that a utility violating the Act "shall be liable" for "all loss, damages or injury," the utility's liability was conclusively demonstrated. Illinois Bell Switching Station, 161 Ill. 2d at 239-40, citing Barthel, 74 Ill. 2d 213, 384 N.E.2d 323, 23 Ill. Dec. 529. In Barthel, the plaintiffs sought the abrogation of the common law defense of contributory negligence. Illinois Bell Switching Station, 161 Ill. 2d at 240, citing Barthel, 74 Ill. 2d 213, 384 N.E.2d 323, 23 Ill. Dec. 529 In rejecting the plaintiffs' argument, the Barthel court noted that the Act is in derogation of the common law, and therefore the tort principles limiting the plaintiffs' claims under the Act would not be deemed abrogated unless "it appears that the intent of the statute" is to do so. Barthel, 74 Ill. 2d at 221. Statutes in derogation of the common law are to be strictly construed in favor of persons sought to be subjected to their operation. Illinois Bell Switching Station, 161 Ill. 2d at 240. The courts will read nothing into such statutes by intendment or implication. Illinois Bell Switching Station, 161 Ill. 2d at 240, citing Barthel, 74 Ill. 2d at 220. The Barthel court held that the common law defense of contributory negligence was available, despite the Act's provision of liability for "all damages" resulting from a violation of the Act. Barthel, 74 Ill. 2d at 220. Having found that the Illinois legislature did not provide for limitless recovery under section 5-201 of the Act, the court in Illinois Bell Switching Station went on to consider whether the defendant telephone utility's tariff barred the plaintiffs' lawsuit. Illinois Bell Switching Station, 161 Ill. 2d at 241.