Cash v. New York Cent. R. Co.

• Decision Date: 05 April 1938
• Docket Number: Gen. No. 9080.
• Citation: 13 N.E.2d 1012,294 Ill.App. 389
• Parties: CASH v. NEW YORK CENT. R. CO.
• Court: United States Appellate Court of Illinois

294 Ill.App. 389

13 N.E.2d 1012

CASH

v.NEW YORK CENT. R. CO.

Gen. No. 9080.

Appellate Court of Illinois, Third District.

Jan. 17, 1938.

Rehearing Denied April 5, 1938.

Appeal from Circuit Court, Vermilion County; Grendel F. Bennett, Judge.

Suit by Richard S. Cash, as administrator of the estate of Lena Vern Dyer, deceased, against the New York Central Railroad Company for the death of his intestate in a collision between automobile in which she was riding and a train of the defendant. From an adverse judgment, the plaintiff appeals.

Affirmed. Merrill F. Wehmhoff, of Decatur, and Steely, Steely, Graham & Dysert, of Danville (W. V. Dysert, of Danville, of counsel), for appellant.

Gunn, Penwell & Lindley, of Danville, for appellee.

FULTON, Chief Justice.

The appellant filed a complaint in the circuit court of Vermilion county in the first count of which he alleged, in substance, that the plaintiff's intestate, on the night of September 7, 1935, was injured and killed when the automobile in which she was riding as a guest, west on U. S. highway No. 36, about a mile south and a mile west of Chrisman, Ill., ran head on into the east side, and about midway of a freight train standing north and south over this highway crossing at grade; that the crossing was extra-hazardous and dangerous in the nighttime, because from a point 500 feet east to a point 200 feet east of the crossing there was an elevation in the highway which threw the rays of the automobile headlights above a freight train standing on the crossing out in the country, and then when within 200 feet of said crossing the highway inclined downward so that it would shoot the rays of the headlights of an automobile below and under the box cars on said crossing. The count further alleged that the crossing had remained in this condition for a period of more than three years prior to the date of the accident, was well known by the appellee, or by the exercise of due care and diligence it could and would have known of the same; that during said period several similar accidents had occurred at this same crossing; that no sufficient signal or warning device was maintained or used at said crossing to give timely warning to travelers that such an extrahazardous crossing existed there in the nighttime, when freight trains were standing or moving over said crossing; that it was the duty of the appellee to maintain a watchman or provide some mechanical warning at such crossing; that because of the failure of the appellee to perform such duty the plaintiff's intestate was injured and died.

The third count charged a violation of the statute, Smith-Hurd Ill.Stats. c. 114, § 70, that no railroad shall obstruct a public highway except for certain purposes therein set forth, and because of the stopping of the train in violation of said statute the automobile in which plaintiff's intestate was riding ran into the side of the train and she was killed.

The fourth count is a willful and wanton count and alleged a violation of the statute, Smith-Hurd Ill.Stats. c. 114, § 62, requiring all railroads to construct and maintain their crossings and approaches thereto so that at all times they shall be safe as to persons and property. It then alleged that this crossing was unsafe and was not on the level with the surface of the highway for a distance of 500 feet east thereof, and that because the tracks were below the surface of the highway for a distance of 200 feet east, the headlights of automobiles would shoot below the body of the box cars during that distance and prevent persons approaching the same from discovering said extra-dangerous condition in time to stop.

Count 5 is a willful and wanton count and charged that the appellee failed to stop its train north or south of said highway crossing and in the event this could not be done that it failed to cut the train in order to open the crossing or to place some one on either side of the train with...