Greenwald v. Baltimore & O.R. Co.

Decision Date20 December 1928
Docket NumberNo. 19292.,19292.
CourtIllinois Supreme Court
PartiesGREENWALD v. BALTIMORE & O. R. CO.

OPINION TEXT STARTS HERE

Action by Irving Greenwald against the Baltimore & Ohio Railroad Company. A judgment of nil capiat was affirmed by the Appellate Court, and plaintiff appeals by certificate of importance.

Affirmed.

Appeal from First Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Charles A. Williams, Judge.

Peden, Kahn & Murphy, of Chicago (Gerald Ryan, Frank E. Gettleman, and David Silbert, all of Chicago, of counsel), for appellant.

Charles D. Clark and Henry D. Sheean, both of Chicago, for appellee.

STONE, J.

This cause comes on appeal by certificate of importance from the Appellate Court for the First District to reverse the judgment of that court affirming a judgment of nil capiat entered by the superior court of Cook county against appellant. The action is for damages to appellant's automobile truck, caused by a collision with a train of appellee. At the close of appellant's case on the trial, the court, on motion of appellee, instructed the jury to find the issues for the defendant. The one issue involved in this case is whether the court erred in so instructing the jury.

The declaration contains four counts and two additional counts. The first count charges negligence in the operation of the defendant's train. The second count charges the failure to ring a bell or blow a whistle, as required by statute. The third count charges violation of the Fencing Statute (Smith-Hurd Rev. St. 1927, c. 54). This count was not pressed on the trial. The fourth count charges the operation of a train at an excessive rate of speed. The first additional count charges that by reason of the fact that the tracks at the place of the accident are in a closely built-up residential portion of the city, making it difficult to see trains approaching the intersection, it became defendant's duty to drive at a reasonable rate of speed considering such surroundings, but, notwithstanding, defendant drove its train over said intersection at the rate of from 35 to 40 miles per hour. The second additional count describes the surroundings as in the first additional count and charges the duty of defendant to exercise reasonable watch and observation for the presence of vehicles on the highway, but that it neglected to do so and the collision resulted from such neglect. All counts of the declaration allege that plaintiff's servants were in the exercise of due care and caution for the safety of plaintiff's property.

The collision occurred at about 11 o'clock on the morning of January 15, 1926, at the intersention of appellee's tracks and Manistee avenue, in the city of Chicago. Manistee avenue extends north and south, while the tracks of appellee at this point extend northwest and southeast, at what was characterized in the evidence as a sharp angle. The defendant's line at that point consists of four tracks laid on a grade about 4 or 5 feet above the general street level. The level of Manistee avenue rises for a distance of 31 feet on the south side of appellee's tracks. Appellant's servants, the driver of the truck and a helper, were proceeding north on Manistee avenue with a truck, and had crossed the southerly track and the one next north of it and were on the first rail of the third track from the south when struck by a train of appellee traveling northwest. As the train struck the truck, the driver of the latter was in the act of turning it in a northwesterly direction, so that the train struck the rear of the driver's cab on the truck, throwing it a distance of approximately 150 feet and damaging the truck. This suit was filed to recover such damages.

On the east side of Manistee avenue, and on the right of one approaching the crossing from the south, is located a two-story residence of one Tasso. The evidence shows that this residence was 50 or 60 feet south of the railroad track at that point. A garage was located in the back of this lot and about 10 feet north of the north line of the house, bringing it within 7 or 8 feet of the first or south track of the railroad. A cement-block factory, consisting of a small frame structure about 12 feet in height, had been built about 125 feet southeast of the crossing, on the southerly side of appellee's railroad tracks and about 4 or 5 feet from the south or first track.

Appellant's witness Gus Graziano, driver of the truck, testified that the Tasso residence was about 60 feet south of the tracks, on the east side of Manistee avenue; that as witness was going north on Manistee avenue he approached the incline to appellee's tracks at a rate of about 12 miles per hour; that he then threw the motor into second speed and looked to the right to see if anything was coming; that as he passed the house he could see 100 feet southeast along the tracks to the garage and about 25 feet further; that as he came to the first rail of the south track he looked to the east and saw nothing except some flatcars on the first track, down by the cement factory; that he saw no train on the third track; that he had reduced the speed to about 5 miles an hour; that there was no whistle blown or bell rung as he came over the first and second tracks; that just as he passed the second track his helper shouted that a train was coming, and he then heard the engineer blow a whistle and he turned his steering wheel to the left. On cross-examination he testified that when on the first track he looked southeast and saw nothing on either the second or third track; that he could then see about 200 feet up the third track at that point; that the first track was 30 feet from the track on which he was struck. He does not testify that he looked east after crossing the first track until his helper called his attention to the train, and he testified it was then about 30 feet away.

Joseph Baker, appellant's helper, was on the truck at the time of the collision. H...

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