Hatcher v. New York Cent. R. Co.
| Decision Date | 18 November 1959 |
| Docket Number | No. 35316,35316 |
| Citation | 17 Ill.2d 587,162 N.E.2d 362 |
| Parties | Ralph A. HATCHER, Adm'r, Appellant, v. NEW YORK CENTRAL RAILROAD CO., Appellee. |
| Court | Illinois Supreme Court |
Frank M. Wanless, Morton (Conrad Noll, Jr., Springfield, of counsel), for appellant.
John M. Elliott, Peoria, and Marvin A. Jersild and Charles I. Hopkins, Jr., Chicago, for appellee.
Plaintiff, as administrator of the estate of his deceased wife, brought an action for damages under the wrongful death statute against defendant railroad company for having caused her death by its wrongful act, neglect or default, and recovered a judgment, based upon the verdict of a jury, in the sum of $25,000. Upon appeal the Appellate Court Third District reversed the judgment without remanding the cause. 20 Ill.App.2d 481, 156 N.E.2d 617. We granted plaintiff's petition for leave to appeal.
Plaintiff's intestate died as a result of a crossing collision between one of defendant's trains and the car driven by plaintiff in which she was a passenger. The Appellate Court concluded, as a matter of law, that the plaintiff failed to prove that the decedent was in the exercise of due care and caution for her own safety at the time of the accident in question and that the circuit court erred in refusing to direct a verdict in favor of defendant and for that error reversed the judgment plaintiff had recovered.
The only question involved in this appeal is whether the evidence fails to show due care and caution on the part of plaintiff's intestate. To determine the question it becomes necessary for us to review the evidence in the record, and in doing so we must consider the evidence most strongly in favor of plaintiff and give to it every reasonable intendment favorable to plaintiff. With this rule in mind we find from the evidence in the record that on September 18, 1955, which was a warm and sunshiny day, at about 3 o'clock in the afternoon, the plaintiff and his family left their home for a Sunday afternoon drive in his 1950 Chevrolet. In the front seat on the left and driving was the plaintiff. His mother, who was visiting at his home, was on the right and his wife was in the middle. In the rear seat there were their three daughters. A son was standing on the floor just back of the front seat. The plaintiff was then 35 years of age, his wife 27 and the children were from 7 to 11 years old.
The evidence further shows that about 900 feet east of the crossing where the collision occurred the road dipped downward, curves slightly to the right, and then reverses into an 'S' turn. The crossing is somewhat east of the center of the 'S' curve of the road. After crossing the railroad the road then goes uphill to the right. The road on both sides of the railroad crossing is a gravel road. The railroad of the defendant at this point is a single track, with planking along the rails for the crossing. The road on which the Hatcher family was traveling was known as Allentown Road.
The plaintiff testified that when he reached the dip in the road east of the crossing he was traveling 30 miles per hour; that he decreased his speed and at the time of the collision and as he approached the crossing he was traveling about 20 miles per hour His mother and his wife were talking about general matters and looking ahead. As he approached the crossing he looked ahead and to the left and right. Plaintiff testified when he was about 200 feet from the crossing he could see the crossing signs and the tracks ahead of him. To the left he could see only foliage, trees and brush, and the same when he looked to the right; that the weeds hiding the railroad were higher than a man's head-8 to 10 feet high.
The fireman, called on behalf of defendant, testified that he was on the side of the engine from which the auto approached; that he had an unlimited view and was looking forward and to the left and that he did not see the car until he was within 25 feet of the crossing and that the trees and corner panel of the engine obstructed his view.
None of the occupants of the car, so far as the evidence discloses, saw the train before it struck the car, nor did they hear a train bell or whistle. The train struck the car slightly to the rear of center on the right side and hurled it into an open ditch on the west side of the tracks. The plaintiff's wife, his mother and two daughters were killed in the collision. The railroad at the crossing runs generally in a southeasterly direction which was the direction the train was traveling over the crossing. Allentown Road runs generally easterly and westerly and the automobile was traveling westerly approaching the crossing. The train was a passenger train of four cars being pulled by a Diesel engine. One of the witnesses testified it was standing about 600 feet beyond the crossing after the collision. As to the speed of the train at about the time of the collision the witness, Walter White, an express messenger then working in the express car, testified that the train could have been going 60 miles an hour.
The engineer did not see the car until after the collision. The fireman saw the car just a split second before the collision and called to the engineer to apply the emergency brakes, which he did, bringing the train to a stop in about two train lengths. The question as to whether the bell was ringing or a whistle was blowing as the train approached the crossing was disputed upon the trial of this cause. The failure to warn by one or the other of these means was alleged in the complaint and there was ample proof of such failure in the evidence. In effect the jury so found by its verdict and the Appellate Court agreed, saying: 'On the question of negligence on the part of the railroad, we believe there is sufficient evidence in the record to present a question of fact for the jury.'
However, as to the other element in the case, that is, whether there was any evidence tending to show that plaintiff's intestate was in the exercise of due care for her own safety at the time of the accident, the court found adversely to plaintiff. In passing upon this question the Appellate Court said: ...
To continue reading
Request your trial
-
Bofman v. Material Service Corp.
...701, 399 N.E.2d 990)), yet a passenger must exercise such care as particular circumstances dictate. (Hatcher v. New York Central Ry. (1959), 17 Ill.2d 587, 593-94, 162 N.E.2d 362.) A passenger, aware of danger which the operator fails to guard against, without taking action to protect himse......
-
Churchill v. Norfolk & W. Ry. Co.
...required to fulfil that duty is ordinarily different because their circumstances are different.' " Hatcher v. New York Central R. R. Co. (1959), 17 Ill.2d 587, 593, 162 N.E.2d 362, 365, quoting Rhoden v. Peoria Creamery Co. (1934), 278 Ill.App. 452, 464-65. Here, the record reflects that Ch......
-
Baker v. Norfolk & W. Ry. Co.
...the driver might not see there would be no duty to warn him.' Smith v. Bishop, 32 Ill.2d 380, 205 N.E.2d 461; Hatcher v. New York Central R. Co., 17 Ill.2d 587, 162 N.E.2d 362. There is no evidence of what the passengers actually saw or did, but the law requires only the highest proof of wh......
-
Smith v. Union Pac. R. Co.
...to exercise the same degree of vigilance as the driver in looking and listening for trains at a crossing. (Hatcher v. New York Cent. R. R. Co., 17 Ill.2d 587, 162 N.E.2d 362.) The mere sight or knowledge of the presence of a railroad crossing does not of itself impose a duty to warn the dri......