Elliott v. Elgin, J.&E. Ry. Co.

• Decision Date: 05 March 1945
• Docket Number: Gen. No. 43026.
• Citation: 325 Ill.App. 161,59 N.E.2d 486
• Parties: ELLIOTT et al. v. ELGIN, J. & E. RY. CO.
• Court: United States Appellate Court of Illinois

325 Ill.App. 161

59 N.E.2d 486

ELLIOTT et al.

v.ELGIN, J. & E. RY. CO.

Gen. No. 43026.

Appellate Court of Illinois, First District, Third Division.

Feb. 14, 1945.

Rehearing Denied March 5, 1945.

Appeal from Circuit Court, Cook County; Michael Feinberg, Judge.

Consolidated actions by John F. Elliott, administrator of the estate of Freeman P. Elliott, deceased, and by Raymond Mattox, administrator of the estate of James R. Mattox, deceased, against Elgin, Joliet & Eastern Railway Company to recover for death of plaintiffs' decedents. From judgments for plaintiffs, the defendant appeals.

Reversed and remanded with directions.Knapp, Cushing, Hershberger & Stevenson, of Chicago (Harlan L. Hackbert, of Chicago, of counsel), for appellant.

Krohn & MacDonald and Noble Stibolt, all of Chicago (Stuart B. Krohn and Ian P. MacDonald, both of Chicago, of counsel), for appellees.

BURKE, Presiding Justice.

Separate complaints were filed in the Circuit Court of Cook County by John F. Elliott, administrator of the estate of Freeman P. Elliott, deceased, and by Raymond Mattox, administrator of the estate of James R. Mattox, deceased, against the Elgin, Joliet and Eastern Railway Company, for damages under the Injuries Act because of the death of two boys, 16 and 17 years old, by the alleged wrongful neglect of defendant. The actions were consolidated for trial and for all further proceedings. A trial before the court and a jury resulted in verdicts in favor of each plaintiff for $10,000. Motions for judgments notwithstanding the verdicts and for a new trial, were denied, and judgments were entered on the verdicts, to reverse which defendant appeals.

The accident occurred on Friday, July 31, 1942, at about 8:15 P.M. at the intersection of defendant's tracks and Main Street in Matteson, Illinois, about 200 feet east of a viaduct by means of which defendant's tracks passed under the elevated tracks of the Illinois Central Railroad Company. Defendant's two main line tracks, the eastbound main and the westbound main, cross Main Street (which runs north and south) approximately at right angles. To the south of the main line tracks, two tracks for delivery to the Illinois Central, cross the highway on a curve. Defendant's combined office building and depot is north of the tracks and west of the highway. Defendant's train was eastbound, operating over the more southerly of the two main line tracks. A traveler approaching the crossing from the north passes under the Illinois Central tracks in a southeasterly direction, then there is a curve in the road, after which the road runs straight north and south about 400 feet to the railroad crossing. A survey received in evidence and the testimony of Charles Boese, the surveyor who measured and computed the distances, established that from a point on the highway 87 feet north of the center line of the eastbound main, a traveler has an unobstructed view down the eastbound track to the edge of the viaduct, which is 197 feet from the center line of the highway. There are two two-way duplex automatic flasher signals at the crossing, the one on the north being west of the roadway, 24 feet north of the center line of the eastbound main, and the one to the south being on the east side of the highway and south of the delivery tracks to the Illinois Central. Each signal standard has two lights so arranged that they show both to the north and to the south on each standard. Above the lights on each signal standard there is the usual cross-arm with the words ‘railroad crossing’ marked in large letters. At the crossing there is also an automatic bell warning signal. There are no gates at this crossing and no watchman is stationed there. The flasher and bell ringing signals are electrified so that when a train comes in contact with a certain spot on the rails it starts the signals, and as soon as the train clears the crossing and reaches a certain point on the other side, not electrified, the flasher and bell stop operating. The points at which the flasher and bell commence and cease operating may be fixed at any distance from the railroad crossing desired by the railroad. If a train occupies any space between these points, the flasher and bell, if working, will keep on flashing and ringing. Although there was no positive evidence to show where the flasher contact point was located west of the crossing, there was evidence which shows that the two delivery tracks for the Illinois Central Railroad were in the circuit, and that on that evening there were cars on the delivery track located 300 feet east of a shanty, which was 100 feet east of the crossing, and that these cars were not within the circuit for the flasher signs, which would locate the circuit somewhere between 300 and 400 feet east of the crossing on the east side and presumably the same distance on the west side of the crossing.

It was daylight and the weather was good at the time of the unfortunate occurrence. The Elliott and Mattox boys were passengers in an automobile owned and driven by Donald Luebchow. The three boys were high school students, 16 or 17 years of age, and were on their way to a farmer's sale at Crete, about six miles south, each intending to buy live stock or poultry to raise and thus earn some money during the summer vacation. The automobile was traveling south on Main Street and it was struck in about the center of the highway by an eastbound freight train traveling on the more southerly of the main line tracks. The Elliott boy was killed almost instantly and the Mattox boy died later that night from his injuries. The Luebchow boy, the driver of the car, was injured. At the time of the trial he was in the Army. They were active, strong boys, in good health and hard working. One of the boys was earning $25 to $30 a week and the other boy worked on a farm during the summer vacation.

Lionel Ray Stoll, a Schoolmate of the boys, testified that he was traveling on his bicycle south on Main Street after the accident when his attention was attracted to the standing train and to the boys' bodies about 28 yards east of Main Street. He testified that the train was standing, blocking the crossing, and that the flashers were not working at that time. On cross-examination he testified that it was still daylight; that as he came down Main Street he noticed that the train was standing there; that when he saw the train he glanced at the flasher signal; and that he was at the crossing before he noticed the bodies or the wreckage or that anything unusual had happened.

Mike Picchi testified that he was at the Mattox home when news of the accident reached there, and that he drove Mrs. Mattox to the scene in his automobile. Upon direct examination he testified that he was too excited to notice whether the train was standing on the crossing; that he was just watching for the Mattox boy, whose body was in an ambulance when he got there; that he did notice the flasher; that ‘the flasher was not on when we got out there, because the train wasn't standing there’; and that ‘when we got over there, the flasher wasn't going on.’ On cross-examination he stated that the light was not on when he got there, but he didn't pay much attention.

James Fox testified that he had been employed approximately 10 years by railroads as a fireman, engineer or switchman and that he was familiar with the automatic flasher signal used by defendant at the Main Street crossing; that the flasher signal is electrified so that when a train comes in contact with a certain spot on the rails it starts the signal, and that the signal continues to operate until the train clears a point on the other side of the crossing. On cross-examination he admitted that his familiarity with the signal at the crossing was based solely on the fact that he had worked six or seven months in 1925 installing signals for the C. & E. I. R. R.; that he had driven over the crossing about 15 times in the past seven years visiting relatives, and that on one occasion after the occurrence ‘at the request of some folks over there’ he laid a bar across the rails. He admitted he was not able to tell from his knowledge of this crossing just where a train must be standing in order to set the flasher signal in motion. Over objection, the fathers of the two boys testified that their sons were of ‘ordinarily careful habits' in traveling upon streets and highways. Mr. Mattox also testified that the Luebchow boy went into the Army in March, 1943; that he had talked to the boy's father about three weeks before the trial and was informed that he was stationed in Nebraska about five weeks before that, and that he didn't know where he was to be sent from Nebraska. Defendant's objection that the testimony as to careful habits was inadmissible because there was an eyewitnesses to the accident, the Luebchow boy, and that there had been no showing of any diligent attempt to obtain his presence at the trial, or his deposition, was overruled.

Walter L. Elwood, the engineer, testified that the train was traveling about 25 miles an hour; that he sounded the whistle from the whistling post, a quarter of a mile west of the crossing, and continued to sound the whistle to the crossing; that the engine bell was ringing from the time he left Frankfort, Illinois, about six miles west of Matteson, continuously until past the place of the occurrence. As engineer, he was seated on the right hand side of the locomotive, or the side away from the approaching automobile, and his first knowledge that there was going to be an ‘accident’ was when the fireman jumped off the seat box. He made a service application of the brakes and brought the engine to a stop about 50 car lengths east of the crossing. The train consisted of 58 cars, all equipped with air, and when the crash came the air was applied to act with equal pressure on all the cars, and the front end of the locomotive came to a stop about 50 car lengths east of the...