Dambacher v. Illinois Cent. R. Co.

• Decision Date: 15 January 1937
• Docket Number: Gen. No. 9031.
• Parties: DAMBACHER v. ILLINOIS CENT. R. CO.
• Court: United States Appellate Court of Illinois

288 Ill.App. 457

6 N.E.2d 226

DAMBACHER

v.ILLINOIS CENT. R. CO.

Gen. No. 9031.

Appellate Court of Illinois, Third District.

Jan. 15, 1937.

Appeal from Circuit Court, Sangamon County; Victor Hemphill, Judge.

Action by George J. Dambacher, administrator of the estate of George F. Dambacher, deceased, against the Illinois Central Railroad Company. Judgment directing verdict for defendant, and plaintiff appeals.

Affirmed.

Hoff & Hoff, of Springfield, for appellant.

Graham & Graham, of Springfield (Charles A. Helsell, Vernon W. Foster, and E. C. Craig, all of Chicago, of counsel), for appellee.

DAVIS, Justice.

On the evening of March 31, 1935, George F. Dambacher, intestate of George J. Dambacher, administrator, plaintiff-appellant, was killed at a crossing over the right of way of the Illinois Central Railroad Company, defendant-appellee. Upon a trial of said cause in the circuit court of Sangamon county the jury returned a verdict finding defendant-appellant guilty and assessing the damages of plaintiff at the sum of $10,000. Upon the hearing of a motion of defendant for a directed verdict in its favor, made at the conclusion of all the evidence, the court, having reserved decision thereon until after verdict, entered judgment in favor of defendant-appellee and in bar of the action. This appeal is from that judgment.

Appellant contends that the court erred in allowing the motion of defendant for a directed verdict of not guilty, made at the close of all the evidence, and in entering judgment for the defendant thereon.

The accident occurred at the village of Glenarm. At this point the tracks of defendant run in a northeasterly and southwesterly direction. A highway known as Burtle avenue crosses the tracks of the defendantin an easterly and westerly direction. U. S. route 66, a concrete highway, passes over defendant's tracks on an overhead bridge at a point 1,218 feet northeast of the intersection of Burtle avenue and defendant's right of way. Route 66 was a much traveled highway and on March 31, 1935, Sunday night, the traffic was pretty heavy in both directions. The headlights of automobiles passing south over the viaduct on U. S. 66 appear to be one headlight when viewed by a person located near the crossing in question, owing to the angle you looked at them.

Cars passing over the viaduct at the time they cross the railroad are about 25 feet above the rails. The approach to the overpass is pretty steep and the lights of automobiles are thrown upward a trifle. There is a guard rail consisting of a plank or metal strip some 12 inches wide, supported by posts about 2 1/2 or 3 feet high on the west side of route 66 for the entire length of the rise coming up to the viaduct. The rail and posts show between you and the automobile when you are down at the crossing looking at the embankment whenever an automobile crosses over the viaduct.

About 7:40 p.m. plaintiff's intestate was driving his automobile west on Burtle avenue and was struck by a passenger train of the defendant which was proceeding in a southwesterly direction at about 65 to 70 miles per hour. He was alone in the car at that time and it was dark. Clarence Alsup, the fireman on the train, was the only eye witness to the accident. The accident occurred at 7:39 p.m. He first saw the automobile as it approached down the dirt road headed toward the west. At the time he first saw him the train was about 400 feet away. He was approaching from the fireman's side. He made a stop at the crossing when the locomotive was 150 to 200 feet away. He started again just as soon as he stopped. He stopped 8 or 10 feet from the crossing. The fireman notified the engineer when he started across the track. The headlight on the engine was burning at this time. The engineer first saw the car when the front of it showed up about 50 feet in front of the engine on his side of the train. The tracks are straight for a mile and a quarter north of where the collision occurred. The headlight on the engine was about 10 feet 2 inches above the rail. It was equipped with a non-glare glass reflector, 14 inches in diameter, with a 2 1/4 inch focal arrangement. The globe has a 250 watt latest type special globe. The glass reflector will give 10 per cent. more illumination than the silver plated copper reflector used in automobiles. It will give about 5,000 times the reflection of an automobile headlight.

It is insisted by appellant that the evidence discloses that to one approaching the crossing in question at night, from the east, the lights of automobiles traveling along U. S. route 66...