Kitchell v. Chicago & I.M. Ry. Co.

• Decision Date: 27 May 1936
• Docket Number: Gen. No. 8906.
• Citation: 285 Ill.App. 368,2 N.E.2d 164
• Parties: KITCHELL v. CHICAGO & I. M. RY. CO.
• Court: United States Appellate Court of Illinois

285 Ill.App. 368

2 N.E.2d 164

KITCHELL

v.CHICAGO & I. M. RY. CO.

Gen. No. 8906.

Appellate Court of Illinois, Third District.

April 17, 1936.

Rehearing Denied May 27, 1936.

Appeal from Circuit Court, Tazewell County; Joseph E. Daily, Judge.

Action by Benjamin P. Kitchell against the Chicago & Illinois Midland Railway Company. Judgment for plaintiff, and the defendant appeals, and the plaintiff files cross-error.

Reversed on defendant's appeal. Provine & Williams, of Taylorville, Clark H. Miley, of Springfield, Miller, Elliott & Westervelt, of Peoria (Walter M. Provine and Harold S. Williams, both of Taylorville, and Frank T. Miller, John M. Elliott, and O. P. Westervelt, all of Peoria, of counsel), for appellant.

J. M. Powers and Ramon A. Powers, both of Pekin, for appellee.

ALLABEN, Presiding Justice.

On May 18, 1933, Benjamin P. Kitchell was riding in a truck owned by him and driven by his son, George Kitchell, on Washington street in the city of Pekin, Ill. Washington street was a through street, and the truck was proceeding in a westerly direction. As the truck proceeded west, it came upon the track of the Chicago & Illinois Midland Railway Company, which crosses Washington street at grade, and at practically a right-hand intersection. A northbound train of that railway company collided with the truck in question, and as a result thereof the truck was demolished and Benjamin P. Kitchell injured. As a result of this accident, Benjamin P. Kitchell, plaintiff-appellee, brought suit against Chicago & Illinois Midland Railway Company, defendant-appellant, in the circuit court of Tazewell county, and was awarded damages by a jury in the sum of $3,800 and costs. It is to reverse this judgment that the defendant has prosecuted this appeal to this court.

The original declaration consisted of two counts, and later by leave of court four additional counts were filed. The case was submitted to the jury upon the first count of the original declaration, and the third additional count. The first count of the original declaration alleges that on May 18, 1933, defendant operated a railway through the city of Pekin; that in said city Washington street, a public highway, running east and west, is intersected by said railway, and that on said date plaintiff was riding in a Chevrolet truck upon said Washington street, toward said crossing, not as the driver, but as a passenger; the truck being driven by George Kitchell; that while the plaintiff was riding in said truck with all due care and caution for his own safety at the time and immediately prior thereto, the defendant by its servants then and there so carelessly, improperly, and negligently operated its locomotive and train of cars that by and because of said conduct the locomotive ran into and struck the truck in which plaintiff was riding, demolishing the same and severely injuring the plaintiff, both temporarily and permanently, so that he lost and will lose great gains and profits, and has been required to expend large sums of money endeavoring to be cured, and his Chevrolet truck was destroyed, to the plaintiff's damage in the sum of $25,000.

The third additional count contains the same allegations as to the general situation of the street and the railway, and as to his riding in the truck, including an allegation that he was in the exercise of all due care, and then proceeds to charge that the defendant negligently, recklessly, and unlawfully drove its locomotive up to and across Washington street crossing, in that no bell of at least 30 pounds of weight was rung, or steam whistle sounded at a distance of at least 80 rods from said crossing and kept ringing or whistling until said crossing was reached by said locomotive, and that in consequence thereof the locomotive ran into the truck, thereby injuring the plaintiff and destroying his property.

The court directed a verdict for the defendant as to the second original count, and the first, second, and fourth additional counts of plaintiff's declaration.

The plaintiff has assigned as cross-error the ruling of the trial court in withdrawing plaintiff's first additional count from the jury; also in withdrawing plaintiff's second additional count from the jury. Therefore, these two counts will be set out later in this opinion.

The plaintiff testified that he was 60 years old on the day of the accident; that on that day he was running a cream station at Gifford in Champaign county where he then lived; that he was the owner of a 1929 Chevrolet truck with a body 10 feet long, 7 1/2 feet wide, 2 1/2 feet deep, with a 2-inch lumber floor, open body, left-hand drive; that the truck had been driven to Pekin a number of times, but that he never, prior to the accident, had been on Washington street; that neither he nor his son had driven the truck on Washington street; that previously they had always come into Pekin on Court street; that on the day in question the son, George, was driving, sitting on the left-hand side, and plaintiff was sitting on the right-hand side; that there was a load of about 500 pounds on the truck; that the truck was not new when he bought it; that the brakes were in first-class condition; that as they were proceeding west on Washington street they first came to the I. C. tracks which were about 300 feet from the tracks where he was struck and injured; that they stopped and a flagman motioned them across, and they crossed five tracks; that he noticed a freight house on his right-hand side, and there were three more buildings on that side of the street, but that there was an opening between the freight house and the first building, and that he noticed a train to the north with smoke coming out; that after that there was no more view; that he looked both ways and could not see anything either way; that there were dwelling houses with sheds in back of them, which obscured the view; that it is 15 feet from the west house on the south side of Washington street to the nearest rail of the Chicago & Ill. Midland tracks; that a fence was connected with a corner of the house, about 4 1/2 feet high, with vertical pickets, and goes west to within 5 feet of the track, then turns and goes south; and that there were trees, shrubbery, brush, and limbs hanging down, which would obstruct the view; that on the day of the accident the trees were leafed out; that after they crossed the Illinois Central tracks, he remarked to his son there was a train up north; that they were going from 10 to 15 miles per hour and stopped when the front end of the truck was about 20 feet from the first Chicago & Illinois Midland track, looked both ways, and could not see to the south except for a small distance of the track; after looking both ways, and as he got farther west, he could see the train to the north, apparently standing still; looked south saw the passenger train coming toward them about 125 feet down the track; that at that time the front end of the truck was just on the first rail of the side track, or about between the rails of the first track, and this train was coming on the next track; that the speed of the truck was 10 miles an hour; that his son immediately applied the brakes, tried to stop, and just came to a standstill when the train struck the truck; that the front wheels of the truck were right between the two rails of the second track; that the train was traveling about 45 miles an hour; that the train struck the truck with great violence, and he felt something hit his back and he was rendered unconscious; that he remembers being placed in an ambulance and taken to the Pekin Hospital. He then testified as to his injuries and the medical attention he had received; that as one went west on Washington street toward the Chicago & Illinois Midland railway company tracks, one first reached the east rail of the east track, that there followed the width of that track, the space between the first track and the second track before reaching the track where the train moved on; that the truck...