Chapman v. Gulf, M.&O.R. Co.

• Decision Date: 26 May 1949
• Docket Number: Gen. No. 9649.
• Citation: 86 N.E.2d 552,337 Ill.App. 611
• Court: United States Appellate Court of Illinois
• Parties: CHAPMAN v. GULF, M. & O. R. CO.

337 Ill.App. 611

86 N.E.2d 552

CHAPMAN

v.GULF, M. & O. R. CO.

Gen. No. 9649.

Appellate Court of Illinois, Third District.

May 26, 1949.

Appeal from Circuit Court, Sangamon County; DeWitt S. Crow, Judge.

Action by Mary L. Chapman, administrator of the estate of John E. Chapman, deceased, against the Gulf, Mobile & Ohio Railroad Company to recover damages resulting from death of the deceased. From judgment entered on verdict finding defendant not guilty, the plaintiff appeals. The defendant assigns cross-error.

Reversed, and cause remanded for new trial.Londrigan & Londrigan, Springfield, for appellant.

Henry A. Converse, Miles Gray, Springfield, for appellee.

DADY, Presiding Justice.

This suit was brought by plaintiff-appellant as administrator of the estate of John E. Chapman, deceased, to recover damages allegedly resulting from the death of John E. Chapman, on August 28, 1945, caused by a freight train of defendant colliding with an automobile driven by George Luers, in which automobile Chapman was then riding as a guest or passenger.

The verdict of a jury found defendant not guilty. Plaintiff's motion for a new trial was denied and judgment for defendant was entered on such verdict. Plaintiff appeals from such judgment. Defendant has assigned cross error.

The amended complaint charged the defendant with general negligence in operating the train in excess of the twenty miles per hour limit fixed by the Illinois Commerce Commission, failure to ring a bell or blow a whistle on the engine to give warning of the approach of the trail failure to maintain a lookout, operating the train at a dangerous and excessive rate of speed, and failure on the part of the defendant's watchman to give any sufficient warning of the approach of the train. The answer of defendant denied all charges of negligence.

At the conclusion of all of the evidence offered by the plaintiff, the defendant moved for a directed verdict in favor of defendant, but, as stated, the trial court denied such motion. The defendant offered no evidence.

The engine of defendant's westerly bound freight train ran into the right side of the Luers automobile at a time when such automobile was being driven north on Fifth Street in Springfield, Ill., and across the tracks at a railroad crossing. Fifth Street ran north and south. Defendant's railroad ran in a northeasterly and southwesterly direction and crossed Fifth Street ‘at an angle.’ It was stipulated that on the day in question the speed limit peritted freight trains across such crossing was twenty miles per hour.

In the pleadings it is admitted that on the night in question, while in the business section of Springfield, Chapman ‘either requested or consented’ to Luers driving Chapman to Chapman's home, that the collision occurred while on such trip from the business section to Chapman's home, and that such trip was for the sole and only benefit of Chapman, as Luers lived in an opposite part of the city.

The only eye witnesses to the collision were George Luers and Joseph Lanzotti, both of whom testified for the plaintiff.

Luers testified he had known Chapman for about 40 years, that about 2:00 A.M. on the night in question he met Chapman in a night club in or near Springfield, where Luers then drank three high balls and saw Chapman drink one bottle of beer, that he, Luers, felt the effect of the liquor but neither of them was intoxicated, that he and Chapman then went to a restaurant in the business district of Springfield where he, Luers, ate a hearty meal, that Chapman had no automobile so Luers proceeded to drive Chapman to the latter's home, that his brakes were in good condition, that he then drove north on Fifth Street toward the crossing, that he was familiar with the crossing, that the first warning he had that a train was approaching was when he was about 100 feet south of the crossing and going about 30 miles per hour and at a time when he was leaning toward and looking at Chapman, that he then saw what appeared to be a light between him and two automobiles parked on the east side of Fifth Street and south of the crossing, and then realized the light must be that of a train, that Chapman then made an outcry, that he could not swear he heard any whistle or bell, but heard no noise, that after he saw the flash of light he kept on going and accelerated his speed, that he had a choice of three things: Try to stop his automobile, or try to turn to the right on a side street, or try to get across the track ahead of the train. That he tried to cross ahead of the train and in so doing ‘made a mistake,’ and that before he saw the flash of light he did not see any one waving a lantern because he was looking toward Chapman.

Lanzotti testified that he was driving he automobile south on Fifth Street, that as he approached the crossing the first warning he had that a train was approaching was a light flashing across the crossing from the engine, which light he first saw when he was about a block north of the tracks, that he did not see or hear any bell or whistle although the window on the left side of his automobile was open, that he then just coasted along very slowly until he was about 45 or 50 feet from the tracks and stopped his automobile at a time when the engine was just about starting in the intersection, that he then noticed the Luers automobile entering the ‘track’ from the south, and all of a sudden, in a split second, the collision took place, that the train and the Luers automobile were each going about 25 miles per hour, that just as he stopped he saw the crossing watchman on his right but did not hear any one blow a whistle, that after the accident the watchman crawled through the train from the south with his lighted red lantern, and just before the crash he saw the watchman make a quick lurch to the side at a time when the Luers automobile was very close to the watchman.

The defendant does not contend that Chapman was guilty of contributory negligence.

The defendant has assigned as cross error that the trial court erred in refusing to direct a verdict for the defendant at the conclusion of all the evidence on the ground that the conduct of Luers just before and at the time he drove upon the tracks in front of the train was the sole proximate cause of the collision and death of Chapman.

Defendant cites Moudy v. New York, Chicago & St. Louis R. Co., 385 Ill. 446 53 N.E.2d 406, and Whitley v. Powell, 4 Cir., 159 F.2d 625. We do not consider either case decisive. In the Moudy case the plaintiff was driving his car when injured and was held guilty of contributory negligence as a matter of law. In the Whitley case the plaintiff's chauffeur was held guilty of contributory negligence attributable to the plaintiff.

We will assume that Luers was guilty of contributory negligence, considering all of the evidence, it is our opinion that we cannot properly say as a matter of law that the negligence of Luers was attributable to Chapman, for it is our opinion that the evidence shows that Chapman was merely a passenger or guest in the Luers car. See Berg v. New York Central R. R. Co., 391 Ill. 52, 62, 62 N.E.2d 676. See same case in 323 Ill.App. 221, 55 N.E.2d 394; 45 C.J. p. 1032; 5 Amer.Juris. pp. 780, 781.

The undisputed evidence shows that the train was traveling in excess of the speed limit of 20 miles per hour. It is our opinion that we cannot properly say as a matter of law that the negligence of both defendant and Luers did not combine to cause the injury. Therefore it is our opinion that the trial court did not err in denying the motion for a directed verdict.

The deceased and T. Audrey Chapman were married on December 11, 1940, in Glendale, California. No could was born of the marriage. At the time of the marriage and thereafter the mother and grandparents of the deceased lived in Springfield.

The widow's testimony was taken by way of deposition of interrogatories submitted by plaintiff and on cross interrogatories submitted by the defendant.

The widow testified that she and the deceased lived together in California from the time of their marriage until October 24, 1943, when he returned to Springfield and did not thereafter return to California, that she continued to live in California until his death, that while the...