Brown v. Illinois Terminal Co.

• Decision Date: 03 February 1926
• Docket Number: No. 16794.,16794.
• Citation: 319 Ill. 326,150 N.E. 242
• Parties: BROWN v. ILLINOIS TERMINAL CO.
• Court: Illinois Supreme Court

319 Ill. 326

150 N.E. 242

BROWN

v.ILLINOIS TERMINAL CO.

No. 16794.

Supreme Court of Illinois.

Dec. 16, 1925.

Rehearing Denied Feb. 3, 1926.

Error to Appellate Court, Fourth District. on Appeal from Circuit Court, Madison County; George A. Crow, Judge.

Action by Cecil Brown against the Illinois Terminal Company. Judgment for plaintiff was affirmed by the Appellate Court after requiring remittitur, and defendant brings certiorari.

Affirmed.E. J. Verlie and H. S. Baker, both of Alton, for plaintiff in error.

C. E. Pope and H. F. Driemeyer, both of East St. Louis, for defendant in error.

FARMER, J.

Defendant in error (hereafter called plaintiff) sued plaintiff in error (hereafter referred to as defendant) for a personal injury caused by an engine and car of defendant striking the plaintiff while he was driving a truck over a crossing of a public highway with defendant's railroad.

Defendant's railroad, as its name indicates, is a short line, approximately 25 miles long, wholly in Madison county, serving industries by delivering loaded cars from them to connecting carriers and delivering empty cars from connecting carriers to the industries. The Young & Dent Construction Company was building a hard road in Madison county. Materials of rock and sand were delivered to a loading bin approximately 25 feet north of defendant's railroad track, and 60 or 70 feet east of where the public highway crosses the tracks. Plaintiff was employed by the Young & Dent Construction Company, and was engaged in hauling materials from the loading bin to the place where they were needed, south of defendant's track, in constructing the hard road. The material was hauled in Ford trucks, and they were driven from the loading bin to the highway crossing parallel to the railroad. Plaintiff loaded his truck at the bin, drove west to the public road, and turned south to cross defendant's tracks. The White Star Refining Company has a plant on the south side of defendant's railroad, about 1,000 feet west of the crossing. About 1,500 feet east of the crossing defendant has storage yards and tracks, called Roxana yards. October 28, 1922, an engine of defendant was pushing an empty oil tank car of the White Star Refining Company in front of it, west toward the White Star plant. The train struck plaintiff on the crossing, wrecking the truck and severely injuring him. One arm was run over by the train, and had to be amputated.

The declaration consisted of three original and one additional count. Two counts charged defendant with willfulnessand wantonness in operating the train and causing the injury. One count charged general negligence in the operation of the train, and one charged a failure to ring a bell or sound a whistle. Each of the counts charged defendant was engaged in interstate commerce. Defendant pleaded the general issue, and a stipulation was entered into that any evidence, admissible under special pleas, properly pleaded, might be introduced. There was a trial by jury and a verdict and judgment in favor of plaintiff, assessing his damages at $15,000. On appeal to the Appellate Court, that court required a remittitur to be filed of $3,000, and affirmed the judgment for $12,000. This court granted a writ of certiorari.

The errors assigned and urged are: That the court erred in overruling defendant's motion to direct a verdict as to the counts charging willfulness and wantonness in the management of the train; that the proof showed plaintiff was guilty of contributory negligence; that the court erred in excluding evidence offered by defendant to prove that at the time of the accident it was engaged in intrastate commerce; and that the court erred in refusing defendant's eleventh, thirteenth, and fourteenth instructions.

There was no obstruction to the view of the train coming from the east, where plaintiff loaded his truck and drove onto the track, nor any obstruction to the view of plaintiff while doing so, from the trainmen operating the train. The engineer testified he saw plaintiff and his truck about 100 feet east of the crossing. The truck was going west, parallel to the track. He saw it make the turn toward the track when it reached the highway, and saw the driver look over his shoulder just before he made the turn. Witness did not slacken the speed of the train, as plaintiff appealed to be intending to stop. When the engineer discovered he was not going to stop, he set the brakes, but was so close to the crossing that it was too late. He was about 30 feet from the crossing when he set the brakes. When the truck reached the highway crossing the railroad, it was 15 or 20 feet north of the track, and turned south to pass over the crossing.

Plaintiff's evidence was that the driveway from the loading bin to the highway was soft, and the trucks had cut deep ruts in the sand, which had to be followed to move with the load. Just before the truck reached the highway it had to turn to the right around a telephone pole before going on the highway. His attention was directed to his truck and the place he had to drive it to keep it moving, and he testified he did not see any train or hear any signals until it was close onto him. His front wheels were on the railroad track when he first saw it. He did not stop from the time he started from the loading bin until he got on the railroad track. He testified no bell was ringing or whistle sounding. Before he started with his load he looked east, and no train was in sight.

There was some contradiction in the testimony as to the speed of the train and as to the signals. Plaintiff's witnesses placed the speed at about 25 miles an hour, while defendant's placed it at 15. Plaintiff's witnesses heard no signal of bell or whistle before the train was very close to the crossing, when, one witness testified, the whistle was sounded. Defendant's witnesses testified the bell was ringing continuously from a point 1,500 feet east of the crossing, and that the whistle was sounded.

[1][2][3] While this is a brief outline of the evidence and situation, we think it sufficient to present the question raised by defendant that the court erroneously denied its motion to direct a verdict as to the two counts charging that the injury was the result of the willful and wanton conduct of defendant. It has been frequently said by this and other courts that whether an injury is the result of willful and wanton conduct is a question of fact to be determined by the jury from all the evidence. Where there is no evidence tending to support the charge of willful and wanton conduct, there is no question of fact to submit to a jury, and the motion to direct a verdict on those counts would present a question of law for the court to decide. Courts have recognized the difficulty of accurately stating under what circumstances a defendant may be held guilty of willful and wanton misconduct in causing an injury. Such conduct imports consciousness that an injury may probably result from the act done and a reckless disregard of the consequences. Ill will is not a necessary element to establish the charge. Plaintiff and defendant had a legal right to pass over the highway crossing, and each was required, in doing so, to observe due regard for the legal right of the other. A willful 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 the 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. Lake Shore & Michigan Southern Railway Co. v. Bodemer, 139 Ill. 596, 29 N. E. 692,32 Am. St. Rep. 218;Heidenreich v. Bremner, 260 Ill. 439, 103 N. E. 275;Illinois Central Railroad Co. v. Leiner, 202 Ill. 624, 67 N. E. 398,95 Am. St. Rep. 266. It is true, the evidence as to the speed of the train and as to whether any signals were given is conflicting, but the judgment of the Appellate Court is conclusive upon those questions. The evidence shows the public road north of the crossing was closed, and the engineer must have known, when he saw plaintiff driving a loaded truck toward the crossing, that he was obliged to go south over the tracks when he reached the highway, but the train continued without slackening its speed or giving any warning until it was practically upon the crossing, and it was then too late to avoid a collision with the truck. The conductor testified he was on the tank car, which was in front of the engine, but that he did not see plaintiff until he was on the track. He said he was looking at the highway south of the crossing, as north of the crossing the road was closed. As we understand the evidence the only persons using the crossing at the time of the accident were the contractors building the public road and their employees. Defendant knew the material for constructing the road had been unloaded on the north side of its track and near thereto, and that it had to be hauled over the crossing to the place where it was being used in constructing the road. The situation then was that defendant's servants in charge of the train knew of the use of the crossing by trucks hauling material for use in building the public road. The engineer saw the plaintiff approaching the road, with his back to the east, until he turned south on the crossing, but, assuming plaintiff would stop before reaching the track, neither slackened speed nor sounded a warning, and the conductor, who was on the oil tank car, says he never saw plaintiff until he was on the track. Plaintiff was only a few feet from the railroad track when he drove on the highway. The engineer saw him before he reached the highway, and must have known he could not pass over the railroad track before the train arrived at the crossing. He assumed plaintiff would stop until the train had...