GULF, M. & OR CO. v. Freund

• Decision Date: 15 September 1950
• Docket Number: No. 14049.,14049.
• Citation: 21 ALR 2d 729,183 F.2d 1005
• Parties: GULF, M. & O. R. CO. v. FREUND.
• Court: U.S. Court of Appeals — Eighth Circuit

21 ALR 2d 729, 183 F.2d 1005 (1950)

GULF, M. & O. R. CO. v. FREUND.

No. 14049.

United States Court of Appeals. Eighth Circuit.

August 9, 1950.

Rehearing Denied September 15, 1950.

Wayne Ely, St. Louis, Mo. (Messrs. Robert C. Ely, St. Louis, Mo. and D. S. Wright, Mobile, Ala., on the brief), for appellant.

Chelsea O. Inman, St. Louis, Mo. (Vincent M. Flynn and Charles E. Gray, St. Louis, Mo., on the brief), for appellee.

Before JOHNSEN, RIDDICK, and STONE, Circuit Judges.

RIDDICK, Circuit Judge.

This appeal is from a judgment entered on a jury verdict in an action for damages for personal injuries sustained by appellee in a collision between an automobile driven by appellee and one of appellant's trains at a grade crossing in Illinois.

Alleging that he was at all times in the exercise of due care for his own safety, appellee charged appellant with negligence causing his injuries (1) in failing to construct and maintain the highway crossing as required by Illinois law, (2) in operating its train at an excessive and dangerous rate of speed, (3) in failing to sound by bell or whistle the crossing warning required by Illinois law, and (4) in failing to stop its train before striking appellee's automobile; and also that in the circumstances of this case the negligent acts and omissions of appellant constituted willful and wanton conduct. Appellant's answer denied appellee's charge of negligence and wanton conduct, and alleged that the collision and appellee's injuries were caused by the contributory negligence of appellee. The trial court submitted the questions of negligence and wanton conduct of appellant and the question of contributory negligence of appellee to the jury. The jury returned a general verdict for appellee.

The ultimate question on this appeal is the sufficiency of the evidence to take to the jury the conflicting contentions of the parties. The substantive law of Illinois controls. In that State the familiar rule prevails that a jury question is presented when the evidence, taken with all reasonable inferences most favorable to the plaintiff, tends to support the cause of action asserted. Gately v. Chicago & E. I. R. Co., 7 Cir., 138 F.2d 222, 225. It is also the law in Illinois that one who engages in willful and wanton conduct resulting in injury to another is liable therefor even though the injured person was guilty of negligence contributing to cause his injury. As in other jurisdictions, contributory negligence of the plaintiff is a complete defense in an action based on the negligence of defendant. Negligence and willful and wanton conduct are not synonymous in Illinois law. What is willful and wanton conduct in one situation may be negligence in another. Gately v. Chicago & E. I. R. Co., supra; Baltimore & O. R. Co. v. Felgenhauer, 8 Cir., 168 F.2d 12, 16. The Illinois cases are collected in a note to Brown v. Illinois Terminal Co., 319 Ill. 326, 150 N.E. 242, in 151 A.L.R. 90-112.

The Illinois courts have recognized the difficulty of accurately stating under what circumstances one may be held guilty of willful and wanton conduct, but the cases agree that such conduct imports both consciousness that injury will probably result from the act done or omitted and a reckless disregard for the consequences. "To constitute a wanton act the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury. An intentional disregard of a known duty necessary to the safety of the person or property of another, and an entire absence of care for the life, person, or property of others, such as exhibits a conscious indifference to consequences, makes a case of constructive or legal willfulness, such as charges the person whose duty it was to exercise care with the consequences of a willful injury." Jeneary v. Chicago & I. Traction Co., 306 Ill. 392, 138 N.E. 203, 206. A late Illinois case, Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 69 N.E.2d 293, 300, decided September 18, 1946, gives this definition: "A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care."

In Provenzano v. Illinois Central R. Co., 357 Ill. 192, 191 N.E. 287, 288, it is said that "to constitute willful and wanton misconduct the injury must either have been intentionally inflicted, or produced by acts so grossly negligent as to exhibit a reckless disregard for the safety of others", a statement of the rule approved by the Supreme Court of Illinois in Robertson v. New York Central R. Co., 388 Ill. 580, 58 N.E.2d 527, decided November 22, 1944. Other cases are Carrell v. New York Central R. Co., 384 Ill. 599, 52 N.E.2d 201; Robins v. Pitcairn et al., 7 Cir., 124 F.2d 734.

The sum of the Illinois cases seems to be that wantonness implies a conscious indifference to the consequences of the act or failure to act, or such gross want of care or regard for the life of others as to imply willingness to inflict injury, although malice is not a necessary element of proof. In Illinois law wanton or willful conduct means conduct which may be less than conduct intended to harm another, but is still something more than conduct which is negligent because of failure to exercise ordinary care, and in every case whether an act or failure to act is willful or wanton depends in final analysis upon the facts and circumstances in which the act is done or omitted. Compare definitions of wantonness or recklessness in Restatement of the Law of Torts, Vol. 2, § 500.

With the Illinois cases in mind, we reach the consideration of the evidence. The collision occurred about 7:35 A.M. at a country crossing where a State highway crosses the line of appellant's tracks at approximately right angles, the railroad running generally north and south and the highway east and west. Appellee approached the railroad crossing from the west, and while his automobile was stalled on the crossing was struck by appellant's train coming from the south. On a clear day the driver of an automobile approaching the crossing from the west has a clear view of the crossing and of the railroad tracks to the south for a distance of at least 1000 feet, and this view is unobstructed for a distance of 600 or 700 feet west of the crossing. On the morning of the accident the highway was covered with snow and sleet. Driving was hazardous, and because of the fog the view of the motorist to the south of the crossing was limited to 650 or 700 feet. The highway on which appellee was driving his 1934 Ford automobile is a gravel road, varying in width from 18 to 20 feet, paved with "blacktop" which also varies in width from 16 to 18 feet, with gravel shoulders on either side of the pavement. The highway slopes laterally from the center to the outer edges of the shoulders. The testimony is conflicting as to whether the highway was wider or narrower at the point where it intersected the railroad tracks, but the proof is that the "blacktop" pavement at the intersection was not more than 16 feet wide.

A statute of Illinois requires every railroad to construct and maintain highway grade crossings over its tracks so that the roadway at the intersection shall be flush with the rails. Ill.Rev.Stat.1949, c. 111 2/3, § 62. At the crossing in this case heavy planks were laid on the outside of each rail and in the space between the rails. These planks were 16 feet in length, extending across the crown of the highway approximately on a level with the rails of the track, but not across the shoulder on the south side of the highway. There, timbers 4 feet in length were placed on either side of each rail of the track from the south end of the 16-foot timbers to the edge of the gravel shoulder of the highway. The space within the rails and between the inside 4-foot timbers was filled with crushed rock, which at the time of the collision was not flush with the rails the full width of the 4-foot extension. Appellee's evidence describing this situation is that "there is crushed rock, but there is not enough rock to fill the 4 foot space, and the rock is below the rails and below the planks, and drops down to the top of the ties, so that there is a depression there which is 6 inches deep between these 2 inside planks." Photographs of the crossing, accepted by the parties as accurately showing the condition of the crossing, show that the rock ballast sloped from the south end of the 16-foot timbers, where it was approximately on a level with them, to reach its lowest point at the south end of the 4-foot timbers. There is a gap 3 or 4 inches wide where the 4-foot timbers join the 16-foot timbers on the inside of the east rail.

Appellee was the sole eye witness testifying in support of his version of the accident. His evidence is that, because of the slippery condition of the highway caused by the ice, he was driving carefully as he approached the crossing along the extreme south side of the highway because of his belief that he could secure better traction if the wheels on the right or south side of his automobile were on the gravel shoulder of the highway rather than on the "blacktop" pavement. He was thoroughly familiar with the crossing, having crossed it twice a day for three months. During that time he customarily reached the crossing in the morning at approximately the time of the accident, and he knew that trains frequently reached the crossing at the same time. He testified that as he approached the crossing he was constantly looking and listening...