Coleman v. Chicago, B.&Q.R. Co.

• Decision Date: 19 December 1936
• Docket Number: Ag. No. 12.
• Citation: 5 N.E.2d 103,287 Ill.App. 483
• Court: United States Appellate Court of Illinois
• Parties: COLEMAN v. CHICAGO, B. & Q. R. CO.

287 Ill.App. 483

5 N.E.2d 103

COLEMAN

v.CHICAGO, B. & Q. R. CO.

Ag. No. 12.

Appellate Court of Illinois, Fourth District.

Nov. 9, 1936.

Rehearing Denied Dec. 19, 1936.

Appeal from Circuit Court, Franklin County; Roy E. Pearce, Judge.

Action by Glen Coleman against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals.

Reversed and judgment rendered. W. H. Hart and M. M. Hart, both of Benton, and C. W. Krohl and J. C. James, both of Chicago, for appellant.

Frank E. Trobaugh and Stephen E. Brondos, both of West Frankfort, for appellee.

EDWARDS, Justice.

In the evening of December 20, 1932, plaintiff, as a guest passenger in an auto driven by Wayne Perryman, was riding from West Frankfort to Carbondale to witness a basketball game. The highway, at the southerly limits of West Frankfort, is intersected by a line of railroad which runs to a coal mine of the Old Ben Company. A block east and south of the railway track was a smoldering pile of slag, giving off smoke which it is claimed floated over to the crossing in question and tended to obscure the visibility at that point. The highway from the north, to the railroad, is somewhat downhill, though not a sharp grade.

At the time in controversy a train of defendant, consisting of an engine to the front of which were coupled ten loaded coal cars, had backed westerly from the mine, and the engine pulled to the west about eight car lengths, when it stopped, with one car upon the highway crossing and one easterly of such point. The headlight of the engine shone over the tops of the loaded coal cars, which were about 8 1/2 feet high above the rail, while the headlight was 2 or 3 feet higher.

The purpose of stopping on the crossing was to enable the rear switchman to alight from the third or fourth car from the engine, walk to the rear, and throw a switch in order that the train might back onto another track. While the switchman was thus engaged, and the car had stood across the highway crossing for perhaps two minutes, the auto in which plaintiff was riding crashed into the side of the car upon the crossing, and as a consequence a young lady passenger in the auto was killed, while the other occupants, including plaintiff, were injured.

Both the driver and plaintiff were familiar with the intersection of the railroad and highway, and had passed over the point many times. The driver testified that the last 300 feet before he reached the crossing he was traveling 20 or 25 miles per hour, and that when he first saw the train he was 30 or 40 feet therefrom; that he then applied his brakes and turned to the left, but was unable to avoid collision with a red coal car. The view of the crossing was unobstructed for at least 150 feet northerly of it.

Plaintiff brought suit under the old Practice Act (Smith-Hurd Ill.Stats. c. 110 appendix, § 1 et seq.), in 1933. The declaration as amended consisted of four counts; each charged that defendant blocked the crossing with its train; that it was then and there under a duty to give notice to travelers on the highway by signs and signals that the train was obstructing the crossing; that defendant failed so to do; and that such neglect was the proximate cause of plaintiff's injuries.

Defendant pleaded the general issue, the cause was tried before a jury, there was a verdict in plaintiff's favor for $2,500, judgment was rendered therefor, and from it this appeal has been perfected.

Plaintiff's position and theory is tersely stated at the bottom of page three of his brief and argument, as follows: “The plaintiff claims there were insufficient signs and signals, and by the defendant's failure to give proper notice of the existence of the fact the crossing was blocked, caused the injury to the plaintiff.”

To entitle the plaintiff to a recovery it was of course necessary that he adduce evidence which tended to prove that defendant was negligent and that such negligence was the proximate cause of his injury. Gibson v. Leonard, 143 Ill. 182, 32 N.E. 182,17 L.R.A. 588,36 Am.St.Rep. 376; 45 Corpus Juris, 901.

No question has been raised that defendant was not rightfully occupying the crossing at the time of the accident, but the contention is made that it rested under the obligation to give notice to travelers on the highway, by appropriate signals or warnings, that its train was then obstructing the crossing. No statute or municipal regulation requiring such has been claimed or cited, and if such duty was imposed upon defendant it must have been by the common law.

Whether a railway company, lawfully occupying for a reasonable time a crossing of its tracks with a public highway, must, in the exercise of due care, give notice or warning to the traveling public of the presence of its train upon the crossing, has many times been before the courts for adjudication.

In Crosby v. Great Northern Ry. Co., 187 Minn. 263, 245 N.W. 31, 32, the rule was stated to be: “Common experience is that the occupation of a highway crossing by a train is visible to travelers on the highway including automobile drivers whose cars are properly equipped with lights and who exercise ordinary care. It would seem that a train upon a crossing is itself effective and adequate warning. It has always been so considered. This is so whether the train is moving or standing. A railroad company is under no obligation to light an ordinary highway crossing at night so that its trains thereon may be seen by travelers.”

Morris v. Atlantic City R. Co., 100 N.J.Law, 328, 126 A. 295, was a case where a train stood over a crossing on a dark and foggy night, without giving warning, and plaintiff's truck collided with the train. The court in denying liability, held that there was no duty on the part of the defendant to give warning to autoists by lights or other signals.

The rule was stated, in Philadelphia & R. Ry. Co. v. Dillon, 1 W.W.Harr. (Del.) 247, 114 A. 62, 15 A.L.R. 894, that a railroad company, rightfully blocking a highway crossing with a standing train, has a right to assume that one...