Bachman v. Illinois Cent. R. Co.

• Citation: 268 N.E.2d 42,132 Ill.App.2d 277
• Decision Date: 18 March 1971
• Docket Number: Gen. No. 11286
• Parties: Roy BACHMAN, father and next friend of LeRoy Bachman, a minor, Plaintiff-Appellant, v. The ILLINOIS CENTRAL RAILROAD COMPANY, a Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 42

268 N.E.2d 42

132 Ill.App.2d 277

Roy BACHMAN, father and next friend of LeRoy Bachman, a minor, Plaintiff-Appellant, v. The ILLINOIS CENTRAL RAILROAD COMPANY, a Corporation Defendant-Appellee.

Gen. No. 11286.

Appellate Court of Illinois, Fourth District.

March 18, 1971.

Dunn, Dunn, Brady, Goebel, Ulbrich & Hayes, Bloomington, Frank M. Brady, Bloomington, of counsel, for appellant.

Fleming, Messman & Lapan, Bloomington, Roger D. Lapan, Bloomington, of counsel, for appellee.

CRAVEN, Justice.

The Circuit Court of McLean County directed a verdict for the defendant-railroad at the close of plaintiff's evidence in this action for personal injuries arising out of an automobile collision with a freight train of the defendant at a crossing known as 'Burns Crossing'. The accident occurred on December 16, 1966, at about 9:45 P.M.

LeRoy Bachman, then age 18, herein referred to as plaintiff, accompanied by five other boys, was driving a 1962 Oldsmobile. The trip originated at a Mr. Quick Drive-In located in Normal, Illinois. The plaintiff and four of the boys worked at this drive-in. They finished work at around 7:00 P.M., went to a store to cash their pay checks and then picked up another passenger, Tom Bainbridge, at his home, for the purpose of going to a shopping center to do some shopping. This they did, then went to a restaurant or drive-in where they visited with some friends. They then departed, with the plaintiff driving. They drove on Route 66 to Route 51 and south on Route 51, and turned east onto a road known as 'Burns Road'. On the night in question the weather is described in the record as extremely foggy, visibility poor, and patches of heavy fog. In some places visibility would be reasonable good and it was clear, and then they would encounter fog where visibility was bad. The evidence indicates that the plaintiff was driving at approximately forty-five to fifty miles per hour as he proceeded on Burns Road. Plaintiff was driving in an easterly direction as he approached the Illinois Central Railroad crossing. The railroad tracks run in a north-and-south direction, and there is a slight jog or bend in the road before the crossing.

John Williamson, a surviving passenger, testified that he was familiar with Burns Road and with the crossing, and that as they proceeded down the road he looked to see if a train was approaching. He looked to the south and it appeared clear. He looked back to the north and didn't see anything at first glance. Then he suddenly saw a train or the markings on freight cars. A number of cars passed in front of them from the time he first observed the train until the impact took place. According to the testimony of Williamson, plaintiff applied his brakes when Williamson first observed the train, or concurrently with that observation. The brakes were applied with full force and were retained at full force from the time of the observation of the train until the collision. Ninetyseven feet of skid marks, continuous up to a point of one or two feet west of the railroad tracks, were described in the evidence. The plaintiff's automobile collided with the 56th or 57th car behind the engine. The speed of the train, estimated on the basis of the way the cars were flashing before them, was stated to be at least sixty miles an hour. The freight train, traveling in a southerly direction, consisted of 121 freight cars pulled by two Diesel engines and was approximately a mile and a half in length. The only lights on the train was a light on the engine at the front and a light on the caboose at the end of the train. There were no lights on the side of the cars, no reflectors on the side of the cars, and no illuminating sheathing or markers.

There is evidence in the record as to obstructions at the crossing, it being the contention that buildings, trees, a railroad cut and some growth amounted to an obstruction of the crossing in three of the four quadrants. Trains coming from the north were described as not visible until they came out of a cut some 190 feet north of the crossing. The crossing was marked by a railroad cross-buck sign which was described as weather-beaten and showing very little paint. As one approaches the crossing from the west, a cross-buck is on the south side of the road and was described as being visible about 150 feet west of the crossing.

The evidence is that the plaintiff was familiar with the crossing, had lived on a farm in the area and had traversed the crossing on many prior occasions, had seen trains on the track in daylight hours, but his testimony was that he had never seen any trains at the crossing after dark. He had never traveled on the road over the crossing when the weather...