Chapman v. Baltimore & O. R. Co.

• Decision Date: 03 May 1950
• Docket Number: Gen. No. 44803
• Citation: 340 Ill.App. 475,92 N.E.2d 466
• Court: United States Appellate Court of Illinois
• Parties: CHAPMAN et al. v. BALTIMORE & OHIO R. CO. et al.

Page 466

92 N.E.2d 466

340 Ill.App. 475

CHAPMAN et al. v. BALTIMORE & OHIO R. CO. et al.

Gen. No. 44803.

Appellate Court of Illinois, First District, Third Division.

May 3, 1950.

Rehearing Denied May 23, 1950.

Delmar J. Hill, Chicago, Thomas P. Foley, Chicago, for appellants.

James F. Wright, Chicago, E. W. Lademann, Chicago, for B. & O. R. Co., Fay Warren Johnson, Chicago, of counsel.

Ross, Berchem & Schwantes, Chicago, for Jay Bilthuis.

BURKE, Justice.

Yvonne Chapman and Mildren Marchese sued the Baltimore & Ohio Railroad Company and Jay Bilthuis for injuries received in a railroad crossing mishap while guest passengers of Bilthuis, charging the corporation with negligence and Bilthuis with wilful and wanton misconduct. At the close of plaintiffs' evidence the court directed a verdict in favor of Bilthuis and entered judgment thereon. The case proceeded against the corporate defendant and resulted in verdicts of guilty, one assessing Miss Chapman's damages at $5,000, and the other assessing Miss Marchese's damages at $500. Judgment was entered on the verdicts. Subsequently, on motion of the railroad, the court entered judgment in its favor notwithstanding the verdicts, and also conditionally granted it a new trial. Plaintiffs appeal. For convenience we will call the railroad corporation the defendant and Bilthuis by his name.

The injuries were sustained at about 2:00 a. m. Saturday, March 9, 1946, at a grade crossing on west 71st Street, an east and west street in Chicago. The crossing is located about 3 1/2 blocks east of Western Avenue. The B & O C T railroad tracks run north and south and cross 71st Street at right angles. These tracks are used exclusively for freight traffic. At the time of the occurrence the crossing was not protected by any watchman, gate or flasher lights. Defendant's freight train involved in the case started the evening of Friday, March 8, 1946, from Garrett, Indiana, on a regular run to Glen Yard, Chicago. The Glen Yard is located west of Brighton Park, Chicago, on the Alton line, the B & O turning off on the Alton tracks where it crosses that line at about 40th Street. Defendant's train was operating over the right of way of the B & O C T. The freight train was not running on a definite schedule. It was proceeding north and consisted of a steam locomotive, 14 cars and a caboose. On the way to the Glen Yard the train was first reduced by setting off cars at the Barr Yard near 135th and Halsted Streets. From there the 14 cars were to be taken to Glen Yard, with 71st Street, where plaintiffs were injured, to be crossed on the way. The crossing at 71st Street consists of three tracks. From west to east they are: a siding track, the southbound main and the northbound main. The train was traveling in the northbound main. The first north and south street to cross 71st Street east of Western Avenue is Claremont Avenue. Oakley Avenue, a north and south street, crosses 71st Street a block east of Claremont Avenue, and Bell Avenue, another north and south street, intersects 71st Street a block east of Oakley Avenue. From Bell Avenue to the railroad crossing is another half block or so.

Plaintiffs live a half mile east of and were acquainted with the crossing. Bilthuis had attended high school in that neighborhood. He was familiar with the crossing and had traveled over it often. On Friday evening, March 8, 1946, Bilthuis, aged 21, accompanied by his friend Andrew Waitches, about 25 years old, called at the home of Yvonne Chapman, 18 years old, and her next door neighbor, Mildred Marchese, 20 years old. The four then left in a four door 1941 Nash sedan automobile, driven by Bilthuis and owned by his father, to go skating at the Arena on the north side of Chicago. On the return trip from the Arena it was sleeting, turning to snow, and the roads were slippery and slick. The parties stopped at a restaurant near 47th and Western Avenue, after which the proceeded south to 71st Street, where they turned east. From the time they left the restaurant until the occurrence the weather was clear. Miss Chapman was sitting to the right of Bilthuis, the driver. Miss Marchese sat to the left of Waitches on the rear seat. At the time 71st Street was icy. In this respect, however, it was no different from the other streets over which the parties had traveled. Bilthuis testified that his highest speed on 71st Street was 15 to 25 miles an hour. He said his car did not tend to slide around because it was not going fast. The car had sealed beam headlights. When the car was traveling on 71st Street they were adjusted for country driving and threw a beam of light for about a block. He said that the brakes were in good working order.

Photographs as to the conditions surrounding the crossing were introduced by the respective parties. These show that the distance from the east curb of Bell Avenue to the tracks is about 250 feet and that the paved portion of Bell Avenue is 30 feet wide. The intervening natural terrain for at least two or three blocks south of 71st Street is level. The tracks, however, run on an artificial embankment, which at 71st Street is about eight feet high. Consequently, 71st Street is so graded as to carry the roadway up to the top of the embankment. The resulting incline of the street, as one proceeds east, begins a short distance east of Bell Avenue and ends just before the first (west) track is reached. The crossing itself is level. The tracks run slightly uphill as they come north. At 71st Street and for two or three blocks to the south the area between Bell Avenue and the tracks contains no buildings, trees, bushes or other obstructions. At the west side of Bell Avenue is a 'slow' sign for eastbound traffic. A photograph shows a square sign with its post embedded in the south parkway of 71st Street about a third of the way, as one travels east between Bell Avenue and the crossing. A crossing (crossbuck) sign was located 15 feet and 11 inches west of the west rail of the first (siding) track and 7 feet south of what would be the south curb of 71st Street. A motorist driving east on 71st Street would first observe the 'slow' sign on the west side of Bell Avenue, then the square sign east of Bell Avenue and lastly the crossbuck sign.

Bilthuis testified that he did not see any headlights; that he did not see any light toward the south or any train approaching; that he was listening for a whistle or a bell; that he did not hear any; that he continued to listen for a whistle or bell until he got up to the tracks; that he heard neither during that time; that he came upon the crossing at a speed of 15 miles an hour; that the locomotive was moving up 5 or 10 feet south of the south cross-walk when he saw it; that the first thing he saw was the numeral lights of the engine on the side up near the smokestack; that he could not see the headlight apparatus; that there was no glare on the tracks ahead of the engine; that at the first sight of the illuminated numerals the front of his car was 15 feet from the track the train was on; that as soon as he saw the engine he applied the brakes; that the car started to slide; that it slid about 5 feet with the brakes on; that then, because of the sliding, he released the brakes and cut the wheel a little bit to the north; and that the car 'sort of responded' to the turn of the steering wheel and the side of the engine caught the right front of the automobile, tore off the hood and twisted the car around so that it stopped facing west. What distance, if any, the car moved between the cut of the wheel and the impact does not appear. At the time of the impact the car was a few feet out of its original path and part of the car was on the north half of the pavement. After the occurrence the car was on the gravel north of the pavement. An exhibit shows that the whole front of the car was crushed back and somewhat from right to left. The point of impact on the locomotive was somewhere along the left side a little ahead of the cab. Bilthuis said his car did not stop from the time he first saw the train until the impact and that the reason was that the car was sliding and skidding on the ice. Miss Chapman was thrown out of the car and beneath it and Miss Marchese was thrown from the rear seat to the floor. When it stopped, the rear of the train was about 4 car lengths north of 71st Street.

The first point advanced by plaintiffs is that they made out a prima facie case against the defendant railroad and that the court erred in entering judgment in its favor notwithstanding the verdicts. Defendant maintains that it was entitled to judgment notwithstanding the verdicts; that the sole proximate cause of plaintiffs' injuries was the conduct of Bilthuis in taking the automobile into the side of defendant's engine; that there was no evidence tending to show that it was guilty of any negligence; that plaintiffs were not in the exercise of due care for their own safety; and that the icy condition of the street was the proximate cause of their injury. By a motion for judgment notwithstanding the verdict the sole question presented to the court is whether, admitting the evidence in favor of plaintiffs to be true, that evidence, together with all legitimate conclusions and inferences, fairly tends to sustain their cause of action. In deciding such a motion the court has no right to pass upon the credibility of the witnesses, to consider any purported impeachments, the weight thereof, or the weight of the testimony. Vieceli v. Cummings, 322 Ill.App. 559, 54 N.E.2d 717. In deciding whether the court erred in allowing judgment notwithstanding the verdicts, we shall consider only the evidence in favor of the plaintiffs. Plaintiffs charge that the proximate cause of the occurrence was the negligence of defendant in operating its train without headlight, bell or whistle up to the point where the enging was when Bilthuis first saw it. Sec. 6 of an Act in relation to...