Grubb v. Illinois Terminal Co.

• Decision Date: 03 June 1937
• Docket Number: No. 23976.,23976.
• Citation: 8 N.E.2d 934,366 Ill. 330
• Parties: GRUBB v. ILLINOIS TERMINAL CO.
• Court: Illinois Supreme Court

366 Ill. 330

8 N.E.2d 934

GRUBB

v.ILLINOIS TERMINAL CO.

No. 23976.

Supreme Court of Illinois.

April 16, 1937.

As Modified on Denial of Rehearing June 3, 1937.

Action by Gladys M. Grubb against the Illinois Terminal Company. Judgment of the Circuit Court for plaintiff was affirmed by the Appellate Court for the Third District [286 Ill.App. 499, 3 N.E.(2d) 948], and defendant appeals by leave.

Judgment of the Appellate Court reversed, and cause remanded to the circuit court for a new trial.Appeal from Appellate Court, Third District, on Appeal from Circuit Court, Sangamon County; Lawrence E. Stone, Judge.

Graham & Graham, of Springfield (E. B. Hamilton, of Peoria, of counsel), for appellant.

A. M. Fitzgerald and L. W. Ensel, both of Springfield, for appellee.

STONE, Justice.

This cause is here on leave to appeal granted to review the judgment of the Appellate Court for the Third district affirming the judgment of the circuit court of Sangamon county in the sum of $10,000. The action was for personal injuries suffered by the appellee in a collision between the automobile in which she was riding and an electric train of the appellant. The complaint, in its several counts, charges that on April 7, 1934, while the plaintiff was in the exercise of reasonable care for her own safety, the defendant, through the carelessness and negligence of its servants, so drove and managed its electric train as to cause a collision between it and the car in which the plaintiff was riding. Excessive speed and failure to give warning signals are among the charges. The defense was a denial of negligence and an allegation of contributory negligence on the part of the plaintiff.

The accident occurred on U. S. Route 66 just south of Springfield at a point where the appellant's railroad crosses the pavement at right angles and at grade. The highway at this point is level. The pavement has a width of 20 feet. The railroad right of way for a considerable distance east of the crossing is level. A short distance west of the pavement it rises at about a 2 per cent. grade to the top of a viaduct some 1,400 feet west of the road. Electric flash signals were installed at this crossing. Appellee's car was proceeding north toward Springfield. As one approaches this crossing from the south, there are buildings along the west side of the highway. The first building south of the track is a two-story residence located about 47 feet south of the track and 74 feet from the east edge of the pavement. About 20 feet south of this building is another two-story house on about the same building line. There is also a filling station about 200 feet south of the railroad track.

The evidence shows that the automobile in which appellee was riding was in good mechanical condition. The train was of a tangerine color and consisted of three cars. In the car with appellee were two of her sisters, Bonnie and Dorothea. The latter was driving. The car in which they were riding ran into the side of the first car of the electric train at about the middle of that car. From the impact, it was thrown against the standard on which the warning flash light was constructed and broke it off. Dorothea was killed and appellee was badly injured. At the close of the plaintiff's evidence, and at the close of all the evidence, appellant moved that the court instruct the jury to find the defendant not guilty. The latter of these motions was denied after the return of the verdict.

Appellant here urges that the trial court erred in not granting appellant's motion to instruct the jury to return a verdict of not guilty; that there is no evidence on which to base a verdict of guilty; and that the court erred in admitting evidence and instructing the jury. Appellant contends, in support of its claim that the trial court should have instructed the jury, that the evidence showed appellee guilty of contributory negligence as a matter of law, whether she be considered a guest of the driver, or one engaged in a joint enterprise. There is much conflict in the evidence as to the speed of the automobile and that of the train, the former being put by various witnesses at from 20 to 50 miles per hour, and the latter from 20 to 60 miles per hour. There is also sharp dispute as to the sounding of the warning as the crossing was approached. Appellee and her sister testified that no horn or whistle was sounded. A large number of persons testified to having heard the horn or whistle sounded as the train approached the crossing. Appellee and her sister and others also testified that the flash signal on the south side of the railroad was not operating. Two witnesses testified on behalf of the defendant that they saw it operating when trains were approaching that morning. The accident occurred at 11:30 a. m. on a bright day.

It is not the province of this court to weigh the testimony, and in determining whether the defendant had a right to an instruction to the jury at the close of all the evidence, the question is whether the plaintiff's evidence tends to support the charge of negligence on the part of the defendant and due care on her part. She and her sister testified that as they approached the crossing each looked east and saw no train. Then all three of the occupants of the car looked west and the deceased sister said that nothing was coming from that direction. Appellee testified that she then said she also did not think so because the lights were not working. She testified that they approached the crossing at about 20 miles per hour and continued at that rate of speed until the automobile hit the train. Appellee testified she did not see the train at any time; that after passing the filling station 200 feet south she looked west and that they looked west again between the filling station and the railroad track; that she could not locate just where it was that she looked the second time, but that it was a place where they could look westward and see the track.

The location of the buildings along the highway as indicated on a scale plat in evidence shows that at a point 50 feet south of the crossing a clear view is had past the first dwelling on the south side of the track for a distance of 450 feet and that at 75 feet south of the crossing any one looking west could see the track for a distance of 175 feet. At a point 100 feet south of the track a glance westward would show the track for a distance of 112 feet. It is a matter of common knowledge that a small automobile of the type here involved, when going at the rate of 20 miles an hour, with brake mechanism in good condition, can be stopped within a few feet. It is also a matter of common knowledge that in broad daylight with the sun shining directly upon one of the ordinary flash warning signals the brilliance of the flash, and therefore the efficiency of the signal, is much diminished.

Counsel for appellee argue that where a flash or wigwag signal has been established, one about to cross the railroad track has a right to rely on the fact that the signal is not indicating danger and to assume therefore that no train is coming; that the traveler has a right to be guided by the warning usually employed and the fact that it was not flashing, and where he, relying on that fact, relaxes his usual caution, he cannot be held guilty of contributory negligence because of such reliance. Counsel for appellee rely on Wabash Railway Co. v. Walczak (C.C.A. Mich.) 49 F.(2d) 763, 764, as supporting the contention that the fact that a flasher signal is not flashing is an invitation to proceed over the crossing. The facts in that case differ so difinitely from those before us that the case can scarcely be said to be persuasive. There the driver of car, about to cross a railroad right of way, stopped on reaching the first of four tracks, and all occupants testified that they looked and listened. The testimony was in dispute as to the presence of box cars on the first and second tracks, which were said to be an obstruction to the view of the approaching train. The flasher signal was manually operated by a towerman and there was no serious contention by the railroad company that the flasher was working at the time the automobile stopped. In passing upon the question whether it was error to refuse to direct a verdict, the court said: ‘Forty-six feet may be considered as a comparatively long distance when it is traveled on foot or even by horse-drawn vehicle. It is a comparatively short distance when traveled by an automobile. This court has repeatedly held that open gates, the absence of a customary watchman, or the failure of crossing signal to operate, lessen the otherwise imperative duty of the traveler to stop, look, and listen, and was the practical equivalent of an invitation to cross. [Citing cases.] Practically all of the above-cited cases recognize an obligation upon the part of the traveler to continue in the exercise of ordinary care throughout the crossing journey, but it is the negligence of the plaintiff himself which alone can defeat recovery upon the ground of contributory negligence.’

In Silvey v. Lehigh & North Eastern Railway Co. (C.C.A.) 62 F.(2d) 71, it was

conceded that the automatic wigwag signal was not working. The automobile stopped 15 feet from the track and, due to a curve, a train could only be seen 200 feet at that point. No whistle was blown or bell rung and, starting in low speed, the automobile was struck by a train going 45 miles an hour. It was held, and rightly so, that the question of contributory negligence was for the jury.

The federal rule governing the duty of one approaching a railroad crossing equipped with gates or flasher signals, though declaring there is an implied invitation to proceed over a crossing which has open gates of a flasher not operating, where the traveler is unaware that such danger signal is not operating at all times, and that such constitutes an implied assurance that no train is...