Allen v. Pennsylvania R. Co.
| Decision Date | 28 May 1941 |
| Docket Number | No. 7249.,7249. |
| Citation | 120 F.2d 63 |
| Parties | ALLEN v. PENNSYLVANIA R. CO. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John G. Riordan, of Chicago, Ill., for appellant.
Wm. A. Redmond, John Knox, and Frank J. Loesch, all of Chicago, Ill., for appellee.
Before SPARKS, TREANOR, and KERNER, Circuit Judges.
This appeal is from a judgment in favor of the defendant in an action brought by the plaintiff to recover damages sustained by reason of the death of her intestate, alleged to have been caused by the negligence of the defendant.
The negligence charged was that the locomotive which caused the death of John K. Allen was recklessly and improperly operated, that it had been run and operated at a high and dangerous rate of speed, that it gave no warning of its approach, that the bell of the locomotive was not rung or its whistle sounded and that the locomotive was not equipped with a headlight of sufficient illumination. Defendant denied generally and specifically the allegations of the complaint, alleged that plaintiff's intestate was not in the exercise of ordinary care for his own safety, and that he was guilty of contributory negligence as a matter of law. There was a trial before a jury. At the conclusion of the evidence for the plaintiff, the court instructed the jury to return a verdict for the defendant and judgment was entered thereon. To reverse the judgment, plaintiff appeals.
The only question presented is whether the court erred in directing the jury to find for the defendant. Plaintiff claims that there was sufficient evidence to justify submission of the case to the jury.
A question of law is thus presented which calls for a consideration of the record, not for the purpose of weighing the evidence, since a jury is the constitutional tribunal provided for trying facts in courts of law, but for the purpose of determining whether there was some evidence. In the consideration of such a question, it is the duty of the court to take the view of the evidence and all the inferences that may be properly drawn therefrom most favorable to the plaintiff, and, if the evidence is of such a character that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions, then the case should be submitted to the jury.
It was incumbent on the plaintiff to prove that the deceased was in the exercise of ordinary care for his own safety at the time and immediately before he was struck by the locomotive, and that the defendant was guilty of negligence.
In Illinois the rule has long been settled that it is the duty of persons about to cross a railroad track to look about them and see if there is danger, and not to go recklessly upon the track, but to take proper precaution to avoid accident. It is generally recognized that railroad crossings are dangerous places, and one crossing the same must approach the track with the amount of care commensurate with the known danger, and when a traveler on a public highway fails to use ordinary precaution while driving over a railroad crossing, the general knowledge and experience of mankind condemns such conduct as negligence. Greenwald v. Baltimore & O. R. Co., 332 Ill. 627, 164 N.E. 142; see Theobald v. Chicago, M. & St. P. Ry. Co., 75 Ill. App. 208.
It is also the rule that the question of negligence and contributory negligence are ordinarily questions of fact to be passed upon by the jury. But if from the facts disclosed the conclusion follows as a matter of law that there can be no recovery in any proper view of the facts, it is the duty of the trial court to direct a verdict. Dunworth v. Grand Trunk Western Ry. Co., 7 Cir., 127 F. 307; Heimann v. Kinnare, 190 Ill. 156, 160, 60 N.E. 215, 52 L.R. A. 652, 83 Am.St.Rep. 123; and Austin v. Public Service Co., 299 Ill. 112, 132 N.E. 458, 17 A.L.R. 795.
Defendant's right-of-way, consisting of two tracks running in a northwesterly and southeasterly direction, crosses Vincennes Avenue, a wide street in the city of Chicago, at approximately right angles. The...
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