Maulding v. Louisville & NR Co.

• Decision Date: 21 June 1948
• Docket Number: No. 9562.,9562.
• Citation: 168 F.2d 880
• Parties: MAULDING v. LOUISVILLE & N. R. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

168 F.2d 880 (1948)

MAULDING v. LOUISVILLE & N. R. CO.

No. 9562.

Circuit Court of Appeals, Seventh Circuit.

June 21, 1948.

Harold Baltz, of Belleville, Ill., for appellant.

Louis Beasley, of East St. Louis, Ill., for appellee.

Before SPARKS, MAJOR, and KERNER, Circuit Judges.

KERNER, Circuit Judge.

By this appeal defendant seeks to reverse a judgment recovered against it by plaintiff for injuries to his person and damages to his property, occasioned by the alleged negligence of defendant in causing two coal cars to collide with plaintiff's automobile. The issues were submitted to a jury and a general verdict was returned in plaintiff's favor.

Plaintiff's complaint consisted of two counts: the first alleged that defendant was negligent in (a) kicking certain cars along its track in violation of c. 114, § 83, Ill. Rev.Stat.1947; (c) causing and permitting the cars to run along its track without any light or signal of any kind on the crossing; (d) causing and permitting the cars to run along its track without any person being stationed at the crossing or upon the cars to give warning of the approach of the cars; and (e) kicking or causing the cars to be propelled toward and over the crossing at a high speed, without any warning of their approach. The second count charged defendant with wilful and wanton conduct. Defendant's answer denied all the charges of negligence and wilful misconduct, and alleged that plaintiff's injuries were the result of his failure to exercise due care for himself and his property.

Upon this appeal defendant's principal contention is that the trial court erred in overruling its motion to direct a verdict in its favor as to the wilful and wanton count. It asserts that there was no proof of wilful or wanton misconduct on its part, and that the motion should have been sustained.

The gist of the wilful count was that the defendant knew there was no watchman at the street crossing; that it knew there was no brakeman nor light on the cars; that it knew the cars were without any braking power, and that if the cars were kicked they would run down, over and across the public highway; and that knowing these facts, defendant, without any regard for the safety of the lives of persons traveling upon the highway, kicked, caused or permitted the cars to run along its tracks.

Defendant operates a main line track through Illinois, from East St. Louis on the west, passing through McLeansboro on the east. At McLeansboro a branch line proceeds southerly to Shawneetown and is known as the Shawneetown Branch. This branch crosses a public street in McLeansboro, protected only by the usual cross-buck warning signs. The street is a much used highway, some 600 vehicles crossing the tracks every twenty-four hours, and runs east and west. Defendant's tracks run northwesterly and southeasterly. The accident happened at 7:15 P. M., December 30, 1945, while plaintiff was driving his automobile westward and on the right side of the street that crosses defendant's tracks. It was dark, his beam headlights were on, and he was proceeding at ten miles an hour. When he got to within eight feet of defendant's track he stopped and looked, and then, shifting the gears, started his automobile and proceeded across the track, where he was struck by defendant's cars coming from the north at twenty miles per hour, and dragged a distance of about seventy feet. There was no brakeman nor light on the front end of the coal car and no switchman at the crossing; no whistle or bell had been sounded to give warning of the approaching cars.

On the night in question defendant's train came from Howell, Indiana, and, at a point 900 feet north of the crossing involved, switched two cars of coal onto the Shawneetown Branch, the tracks of which descend southward, 7 inches to each 100 feet. One Simerrell, a brakeman, testified that the two cars were a part of a cut of cars; that he climbed onto the most northerly car of the two, set its brakes, returned to the ground, uncoupled the two cars, and gave a signal to the engineer to proceed northward; that when he turned to get on the cars that were leaving under the control of the engine, he noticed that the two cars were starting to move southward; that he ran to the forward car and set its brakes but that this failed to stop the cars; that he did not know what was the matter with the brakes; that he then climbed to the ground and ran to the front end of the forward car with his electric switch lantern for the purpose of warning persons of the approaching cars; that as the cars approached the street crossing he was on the southeast...