Carr v. Chicago & Northwestern Ry. Co.

• Decision Date: 25 February 1948
• Docket Number: Gen. No. 44147.
• Citation: 333 Ill.App. 567,77 N.E.2d 857
• Court: United States Appellate Court of Illinois
• Parties: CARR v. CHICAGO & NORTHWESTERN RY. CO.

333 Ill.App. 567

77 N.E.2d 857

CARR

v.CHICAGO & NORTHWESTERN RY. CO.

Gen. No. 44147.

Appellate Court of Illinois, First District, Third Division.

Feb. 25, 1948.

Appeal from Municipal Court of Chicago, Cook County; Michael L. Rosinia, Judge.

Action by Franklin Carr against the Chicago & Northwestern Railway Company for damage to plaintiff's truck-trailer as the result of striking defendant's viaduct over a county road. Judgment for defendant, and plaintiff appeals.

Affirmed.Seago, Pipin, Bradley & Vetter, of Chicago, for appellant.

Lowell Hastings, Drennan J. Slater and Robert C. Beguelin, all of Chicago (Drennan J. Slater, of Chicago, of counsel), for appellee.

KILEY, Justice.

This is an action for damages to plaintiffs truck-trailer. The damage was done as plaintiff's employee drove the vehicle, 11 feet high, beneath defendant's viaduct over the Huntley-Algonquin Road, in McHenry County. The viaduct was not of sufficient height to accommodate the truck. The amount of the damage was stipulated to be $783.60. The court without a jury found, and entered judgment, for defendant. Plaintiff has appealed.

The accident occurred at 3:30 a. m. on October 8, 1944. The vehicle loaded with cattle was being driven to Huntley. The gravel road under the viaduct was constructed and maintained by McHenry County. The viaduct was built by defendant. There were no signs on the viaduct or otherwise indicating the vertical clearance thereunder.

The issues made by the pleadings are whether plaintiff's employee was in the exercise of due care; whether defendant was guilty of negligence in failing to raise its viaduct or to post vertical clearance signs; and whether the alleged negligence was the proximate cause of the damage. Defendant denied any duty to raise the viaduct or post the signs.

There is a dispute whether the decision was one of law or fact. Defendant says the decision rested on findings of fact; that our power in the case is to determine only whether the findings are against the manifest weight of the evidence; and that since plaintiff makes no claim that the findings are against the manifest weight of the evidence, the findings are conclusive. Plaintiff argues that though the pleadings raise issues, the evidence is uncontroverted and, accordingly, a legal question only is presented.

The driver's signed statement was introduced by stipulation. He said it was dark at the time of the accident; that he was going about 20 miles per hour in low gear; that he saw the viaduct and ‘though I could make it’; that it was his first trip over the road and that it never occurred to him that the vehicle could not clear the viaduct; that he did not stop, but ‘went right ahead’; that there were no markings on the viaduct; that he had the bright headlights on; that he had had no instructions about the viaduct from plaintiff; and that there were no witnesses to the accident.

The parties stipulated that if called as a witness for plaintiff a State Highway Engineer would testify that on all new Highways constructed by the State a clearance of 14 feet ‘would be required’ under all viaduct crossings; that elevation of viaducts already constructed with less clearance would not be required; and that it is the practice of the State to see that clearance indications are posted on such viaducts. Defendant did not controvert this testimony but objected that it was not material. The viaduct involved here is of old construction. Defendant introduced a stipulation that McHenry County constructed and maintained the road beneath the viaduct. There was no other evidence.

The court ‘having heard the evidence’ found the defendant not guilty, entered judgment that the plaintiff take nothing by the suit, and for defendant's cost. There was no question of what happened and, consequently, no question of fact. Harvard Law Review, Vol. LX No. 8, p. 1303 et seq. The question was what were the legal consequences of what admittedly happened. We hold that the court's judgment rested on a finding of law. It is not possible from the record to say whether the finding was upon the driver's due care or the defendant's negligence. If the record supported either or both the judgment is right.

The truck was several inches higher than the clearance between the road and viaduct. There was at the time of the accident no statute governing the height clearance and none governing the height of the trucks. It is plaintiff's contention that the viaduct was part of the crossing so as to bring this case under an Act in Relation to Fencing and Operating Railroads (1874) Chap. 114, Pars. 53-67, Ill.Rev.Stats. Section 8 of that Act (Par. 62) provides that ‘henceforth’ railroads should construct and maintain their crossings so that they would be safe for persons and property.

At common law a railroad was required to exercise reasonable care to provide safe crossings at highways in existence. Sec. 8 of the Act requires a railroad to maintain the crossing safely regardless of the question of priority of existence. Waterbury v. Chicago M. & St. P. Ry. Co., 207 Ill.App. 375. It has been held that a crossing includes the viaduct. City of Chicago v. Pittsburg, C., C. & St. L. R. Co., 146 Ill.App. 403. Section 8 does not apply to the road beneath the viaduct. People v. Illinois Cent. R. Co., 235 Ill. 374, 85 N.E. 606, 18 L.R.A.,N.S., 915.

There is no contention made by plaintiff that the...