Briske v. Vill. of Burnham

• Decision Date: 10 March 1942
• Docket Number: No. 26244.,26244.
• Citation: 39 N.E.2d 976,379 Ill. 193
• Parties: BRISKE v. VILLAGE OF BURNHAM et al.
• Court: Illinois Supreme Court

379 Ill. 193

39 N.E.2d 976

BRISKE

v.VILLAGE OF BURNHAM et al.

No. 26244.

Supreme Court of Illinois.

Jan. 20, 1942.

Rehearing Denied March 10, 1942.

Appeal from Appellate Court, First District, Third Division, on appeal from Circuit Court, Cook County; John T. Cummings, Judge.

Action by Leona Briske against the Village of Burnham, the Baltimore & Ohio Chicago Terminal Railroad Company, and the New York, Chicago & St. Louis Railroad Company for injuries sustained by the plaintiff when an automobile in which she was riding struck a barricade. From a judgment of the Appellate Court, 308 Ill.App. 531, 32 N.E.2d 349, which reversed a judgment for the plaintiff and rendered judgment for defendants, plaintiff appeals.

Affirmed.

H. Meyer Simborg and Earl J. Walker, both of Chicago, for appellant.

Markman, Donovan & Sullivan, of Chicago (Samuel K. Markman and Henry O. Nickel, both of Chicago, of counsel), for appellee Village of Burnham.

Winston, Strawn & Shaw, of Chicago (Douglas C. Moir, of Chicago, of counsel), for other appellees.

WILSON, Justice.

The plaintiff, Leona Briske, brought an action in the circuit court of Cook county against the defendants, the village of Burnham, the New York, Chicago and St. Louis Railroad Company and the Baltimore & Ohio Chicago Terminal Railroad Company, to recover damages for personal injuries sustained on September 21, 1935, when an automobile in which she was riding as guest struck a barricade across a vacated street in the village of Burnham. At the conclusion of plaintiff's evidence and, again, at the close all the evidence, defendants' motions for a directed verdict were denied. A jury returned a verdict of $3,000 in favor of plaintiff, and judgment was rendered on the verdict. Upon appeal, the Appellate Court for the First District reversed the judgment, without remanding, and entered judgment for defendants and against plaintiff for costs. Briske v. Village of Burnham, 308 Ill.App. 531, 32 N.E.2d 349. We have granted leave to appeal.

August 12, 1931, the village of Burnham passed an ordinance vacating Entre avenue from its intersection with Pullman avenue to Brainare avenue. The ordinance provided that it should become effective upon being recorded in the office of the Recorder of Deeds of Cook county and when Burnham avenue should be opened to public travel. These two conditions were satisfied. A certified copy of the ordinance was recorded April 22, 1933, and Burnham avenue was opened to public travel on December 20, 1933. Prior to the day named, motorists driving north into Hegewisch and Chicago frequently used Entre avenue. The action of the village in vacating this portion of the street was taken conformably to a plan approved by the Illinois Commerce Commission for extending and improving certain highways. Its approval was required becaused of the necessity of the railroads relocating some of their tracks. The Commerce Commission's approval of the plan was conditioned upon the portion of Enter avenue, previously described, being closed to public use as soon as the Burnham avenue crossing should be opened for public travel. The railroads involved paid the village of Burnham for the land taken. The defendant railroad companies used a portion of vacated Entre avenue as a mode of ingress to and egress from their property. Admittedly, none of the defendants erected or maintained a warning sign with respect to Entre avenue being vacated beyond Pullman avenue. About one hundred and twenty-five feet northeast of Pullman avenue the terminal railroad company maintains a switch track running parallel with Pullman avenue. Adjoining the track on the northwest side is a regular cross-buck warning signal. A barricade, consisting of a solid rail, about three and one-half or four feet in height, extends completely across the vacated street two hundred feet northeast of Pullman avenue and about fifty feet northeast of the terminal railroad company's property. Tracks of the New York, Chicago and St. Louis Railroad Company are fifty feet beyond, or northeast of the barricade. This rail, on the day of the accident, was painted in alternate black and white stripes, and held in place by four or five uprights driven into the pavement. At the top of the barricade in the center was a red reflector, described as six inches, eight inches, and one foot square by witnesses upon the trial. The evidence fails to disclose when the barricade was erected or who erected it.

The collision resulting in this action occurred almost two years subsequent to the vacating of Entre avenue. September 21, 1935, about 9:30 P. M., Stanley Jakubcyk and a friend, Casimer Francus, called at plaintiff's home in Calumet City. Shortly thereafter, the young men, plaintiff and Ann Warchol departed in Jakubcyk's Ford automobile, intending to visit a ballroom in Hegewisch, about a mile and a half distant. Jakubcyk and plaintiff occupied the front seat and the other couple sat on the rear seat. They proceeded north on Burnham avenue, turned left on Pullman avenue and drove in a northwesterly direction on this street until it intersected with the vacated street, previously known as Entre avenue. Jakubcyk testified that at the point where he turned northeast on Enter avenue there was a light on the corner, and that the street was not only well paved but was in very good condition. The atmosphere, it is conceded, was clear and the pavement dry. According to his testimony, as he approached the railroad tracks he observed a cross-arm sign on the left-hand side bearing the legend ‘Railroad Crossing Danger,’ reduced the speed of his car to about fifteen or twenty miles an hour, looked down the tracks to see if any trains were approaching, and ‘I think everything just went black in front of me. After that we hit that barricade.’ Testifying further, Jakubcyk said that he was watching the street ahead as he drove along but did not observe or see any barricade or structure across the street; that later he observed the barrier consisted of a solid rail in the center of which was a red light, a piece of glass, adding: ‘But you couldn't see it unless you got on top of it, that is a car with two lamps. * * * All I noticed was that the rail was just like any other common rail.’ The witness also stated that he had no knowledge or information that the rail was across the road and that there was no other illumination on the street excepting the light previously mentioned, at the intersection of Pullman and Entre avenues. Jakubcyk declared he had not driven on Entre avenue for six or seven years prior to the accident. On cross-examination, he testified that his driving lights were in operation at the time of the collision; that they were in good condition and reflected light approximately two hundred feet ahead. He insisted that the barrier was not painted, saying: ‘It was just rusty, that is all it was.’

Casimer Francus, one of the occupants of the car, testified that the street at the intersection of Entre and Pullman avenues was paved; that the car was running smoothly; that he saw a cross-sign on the left-hand side of the street, but that he did not, however, observe anything in front of him. According to Francus, the headlamps on the automobile were lighted. He also stated that the railroad crossing sign was about fifty feet from the barrier; that he had been on the...