McMahon v. Duncan

• Decision Date: 05 May 1942
• Docket Number: Gen. No. 9314.
• Parties: MCMAHON v. DUNCAN ET AL.
• Court: United States Appellate Court of Illinois

314 Ill.App. 235

41 N.E.2d 301

MCMAHON

v.DUNCAN ET AL.

Gen. No. 9314.

Appellate Court of Illinois, Third District.

Feb. 24, 1942.

Rehearing Denied May 5, 1942.

Appeal from Circuit Court, Sangamon County; L. E. Stone, Judge.

Action by Della McMahon, administratrix of the estate of Rolla McMahon, deceased, against Ora B. Duncan, administratrix of the estate of Wilbur C. Duncan, deceased, and Illinois Central Railroad Company, to recover for the death of Rolla McMahon in a collision between an automobile and train. From a judgment for the defendants, plaintiff appeals.

Reversed and remanded. Catron & Hoffmann and Coy N. Overaker, all of Springfield (B. Lacey Catron, of Springfield, of counsel), for appellant.

Gillespie, Burke & Gillespie and Graham & Graham, all of Springfield (E. C. Craig, V. W. Foster, and C. A. Helsell, all of Chicago, of counsel), for appellees.

HAYES, Presiding Justice.

Rolla McMahon and Wilbur C. Duncan were killed in a collision at Divernon, Illinois, on January 1, 1939, when the car owned and driven by Duncan struck a train operated by the Illinois Central Railroad. There were two witnesses to the collision who testified that the Duncan car turned from a side street on to the street intersecting the railroad right of way a block from the crossing; that the car proceeded at a speed of about thirty miles per hour, and failed to slacken its pace at any time before it reached the crossing. The train in question was coming from the north and proceeding in a southerly direction at a speed of about fifty-five or sixty miles per hour.

The record shows that north of the highway there were located a tool house and two lumber sheds, joined by a picket fence, which may have tended to obstruct the view of motorists traveling on the highway toward the crossing. It also appears from the record that the flashing signal at the crossing was in operation at the time of the collision and that the engineer on the train sounded his whistle as he approached the crossing. The Duncan care and the train collided at the crossing--the car striking the train about six feet back of the front of the locomotive.

This action was brought in the Circuit Court of Sangamon County by the administratrix of the McMahon estate, against the administratrix of Duncan's estate and the Illinois Central Railroad Company, under the Injuries Act, Ill.Rev.Stat.1941, c. 70, § 1 et seq., to recover damages for McMahon's death. There was a trial before a jury and at the close of plaintiff's case both defendants filed motions for directed verdicts. The motion on behalf of the Administratrix of Duncan's estate was allowed by the Court and the jury instructed to find that the defendant was not guilty. The trial court denied...