Langston v. Chicago & N.W. Ry. Co.

• Decision Date: 08 January 1947
• Docket Number: Gen. No. 10054.
• Citation: 70 N.E.2d 852,330 Ill.App. 260
• Court: United States Appellate Court of Illinois
• Parties: LANGSTON et al. v. CHICAGO & N. W. RY. CO.

330 Ill.App. 260

70 N.E.2d 852

LANGSTON et al.

v.CHICAGO & N. W. RY. CO.

Gen. No. 10054.

Appellate Court of Illinois, Second District.

April 18, 1946.

Rehearing Denied Jan. 8, 1947.

Appeal from Circuit Court, Lake County; Ralph J. Dady, Judge.

Action by Charles E. Langston, by Bryan Langston, his father and next friend, Ruth Bargar, Rosalie Radicella, and Alice E. Spoo, as administratrix of the estate of Charles L. Spoo, deceased, against the Chicago & North Western Railway Company, a reorganized Wisconsin corporation, to recover for personal injuries and for the death of the deceased, when an automobile driven by deceased ran into the side of defendant's freight train. From a judgment in favor of the defendant notwithstanding verdicts for the plaintiffs, the plaintiffs appeal.

Judgment reversed, and judgment on verdicts entered for plaintiffs.Snyder and Clarke, of Waukegan, for appellants.

George W. Field, of Waukegan, and James B. O'Shaughnessy and Drennan J. Slater, both of Chicago, for appellee.

DOVE, Justice.

On February 3, 1944, at about 2:30 o'clock, A.M., an automobile driven by Charles L. Spoo, now deceased, in which appellants Charles E. Langston, Ruth Bargar, Rosalie Radicella, and three other persons, were riding, was proceeding east in a fog on State Highway 120, about one mile west of Waukegan, the highway at that point being known as Belvidere Street, and ran into the side of a freight train of appellee, which was proceeding south across the highway, Charles L. Spoo was killed, and the appellants above named were severely injured.

Appellants sued appellee in the circuit court of Lake County to recover damages on account of the accident. The amended and supplemental complaint consisted of four general negligence counts, the first three of which alleged personal injuries to the three named appellants, respectively, and the fourth count was based on the wrongful death of Charles L. Spoo. Each count alleged due care and caution on the part of the plaintiff to whom it pertained, and each count, among other charges of negligently operating the train and negligently maintaining the crossing, included a charge that the defendant carelessly, negligently and improperly failed to maintain the proper lights upon the railway crossing. After the issues had been made up there was a trial by jury. At the close of the plaintiffs' testimony the defendant's motion for a directed verdict in its favor was denied, and at the close of all the testimony, ruling on a like motion was reserved. The jury returned verdicts of $12,500 for Charles E. Langston; $10,000 for the administratrix of the estate of Charles L. Spoo, deceased; $7,500 for Ruth Bargar; and $500 for Rosalie Radicella. A motion by the plaintiffs, for judgment on the verdicts, and a motion by the defendant for judgment in its favor notwithstanding the verdicts, were argued, and the court entered a judgment denying the motion of the plaintiffs, allowing the motion of the defendant, and rendering judgment in favor of the defendant notwithstanding the verdicts, and the cause is here by an appeal from that judgment.

(1) The scope of the inquiry on this review is restricted, as it was in the trial court, to a question of law as to whether, when all the evidence is considered, together with all reasonable inferences drawn therefrom, in its aspect most favorable to the plaintiffs, there is any evidence tending to prove any cause of action stated in the complaint. If there is, the motion should be denied, as the weight and credit to be attached to it in connection with the other facts and circumstances shown are questions of fact for the jury. Todd v. S. S. Kresge Co., 384 Ill. 524, 527, 52 N.E.2d 206;Ziraldo v. W. J. Lynch Co., 365 Ill. 197, 6 N.E.2d 125;Kelly v. Chicago City R. Co., 283 Ill. 640, 119 N.E. 622;Van Hoorbecke v. Iowa-Illinois Gas & Electric Co., 324 Ill.App. 88, 57 N.E.2d 652.

Belvidere Street is a two lane concrete pavement running east and west. Appellee's tracks run north and south, crossing Belvidere Street about one mile west of Waukegan. U. S. Route 41, a four lane highway, separated in the center by a parking space 20 to 25 feet wide, runs north and south parallel to the railroad about 75 feet west of the tracks, and is known as ‘Skokie Highway.’ Both highways are heavily traveled, and the principal route between Chicago and Waukegan crosses the railroad at the place where the accident occurred. Belvidere Street is practically level. When approaching the railroad from the west the view to the north from a point 50 feet west of the tracks is about 4300 feet, and to the south, about a mile. More than 450 feet west of the crossing on the south side of the highway is the usual round metal sign with the letters R. R. outlined in reflector buttons.

There is a set of warning signals maintained by the railroad company on each side of and about 15 feet from the tracks, and both sets of signals operate during and stop at the same time. Each set consists of two signals, one of which is a post with four red warning lights, vertically spaced, which, when in operation, spell the word ‘STOP’. The other signal is a ‘wig-wag’ with a red light in the center and a bell. When the signal is in operation, the wig-wag swings north and south, the red light lights, and the bell rings. The signals are operated by a storage battery, which is replenished by a charger, and their operation is controlled by trippers on the railroad tracks about 2846 feet from each side of the crossing, connected with the electric circuit. If the signals are in working order, they operate on both sides of the tracks whenever a train enters the circuit and until it passes the crossing.

At the corners of the intersection of Belvidere Street and Skokie Highway there are stop and go signals with red and green lights, maintained by the State Highway Department. These lights are synchronized with the railroad crossing signals, and were in working order when the Spoo car approached from the west and when the collision occurred. When the stop and go sign at the southwest corner of the intersection shows a green light for traffic from the west on Belvidere Street, the railroad signals, if in working order, will not be operating, and this indicates that there is no train approaching or on the crossing. If there is a train approaching or on the crossing, and the railroad signals are operating, the highway signal shows red.

The decedent was a taxicab driver. His familiarity with the crossing and the operation of the signals is shown by testimony that he had traveled Belvidere Street many times when there was a train at the crossing and the stop light at the southwest corner of the highway crossing was red and stayed red until the train left the crossing, and that he had used the crossing hundreds of times when the stop light was green and there was no train at the crossing.

Ruth Bargar and Rosalie Radicella were nurses aids at a hospital and had dinner the evening of February second with Huston Hayward and Richard Kremm at a restaurant and then went to a show, after which they all went back to the restaurant, and there met Charles Langston and Herbert Robb. All four young men were sailors from Great Lakes Naval Training Station. They all finally went to Shamrock Grove on Belvidere Street, about a quarter of a mile west of the railroad, where they danced to a ‘juke box’ and drank coca-cola. When they were ready to go home, after unsuccessful efforts to procure a taxicab, one of the boys arranged with decedent Spoo, who was eating a sandwich and drinking a cup of coffee, and who was a stranger to all of them, to take them to Waukegan in his car for $1.25. This was Spoo's night off from his regular duty, and he had taken his wife to work on a night shift, driving his own car. The testimony shows that neither Spoo nor any of the party had been drinking anything other than coca-cola and coffee. Charles Langston sat at the right of the driver in the middle of the front seat, and Herbert Robb at his right. Huston Hayward sat on the left in the rear seat, Rosalie Radicella in the middle, Richard Kremm on the right, and Ruth Bargar sat on Huston Hayward's knee, leaning forward with her elbows on the back of the front seat, looking straight ahead through the windshield. Rosalie Radicella was also looking through the windshield. Charles Langston was so mentally incapacitated from his injuries that at the time of the trial he did not remember the accident or of knowing either of the girls. The other three boys were overseas in the navy at the time of the trial.

From the time the party left Shamrock Grove until the accident, the decedent's car did not travel over 20 miles an hour at any time, and the headlights were on ‘bright’ and the windshield wiper was operating. In the fog, lights could be seen for 50 feet, and unlighted objects on the highway could be seen for about 10 feet. When the car reached the highway intersection the green light was showing and none of the railroad warning signals were operating, indicating that no train was approaching or on the crossing. Both girls testified that they saw the green light about 50 feet before they reached it. The car continued on past the green light and when it was about 10 feet from the southbound tracks, the lights of the car picked up the side of a boxcar in the train. The driver of the car swerved it to the right, but collided with the box car, and it was thrown south and west.

The train consisted of 83 cars and a caboose, and was moving at a speed estimated by one witness as 20 to 30 miles an hour, and by the locomotive engineer as 40 miles an hour. The automobile struck the 59th car from the engine. The only lights on the train were the headlights on the locomotive and the lights on the caboose. The whistle had been sounded for the crossing and the locomotive bell was ringing. The train crew knew nothing about the accident until they were...