Miles v. American Steel Foundries

• Decision Date: 08 November 1939
• Docket Number: Ag. No. 4.
• Citation: 302 Ill.App. 262,23 N.E.2d 754
• Parties: MILES v. AMERICAN STEEL FOUNDRIES.
• Court: United States Appellate Court of Illinois

302 Ill.App. 262

23 N.E.2d 754

MILES

v.AMERICAN STEEL FOUNDRIES.

Ag. No. 4.

Appellate Court of Illinois, Fourth District.

Nov. 8, 1939.

Appeal from City Court of East St. Louis; Wm. F. Borders, Judge.

Suit by Oscar Miles against the American Steel Foundries for damages sustained when automobile driven by plaintiff collided with defendant's train at a public crossing. From judgment for plaintiff, the defendant appeals.

Reversed and remanded with directions. Wheeler, Oehmke & Dunham, of East St. Louis, for appellant.

McGlynn & McGlynn, of East St. Louis, for appellee.

STONE, Presiding Justice.

This suit is predicated upon an amended complaint of three counts and three additionalcounts numbered 4, 5 and 6. The first count alleges that defendant was operating a locomotive engine and train of cars across Broadway in the City of East St. Louis; that plaintiff was driving his automobile eastward on said Broadway near its intersection with Twentieth Street about 12:30 in the morning and was using due care and caution for his safety; that said cars were low built cars, 3 feet high above the ground and were not easily discernible or visible; that their presence could not be ascertained by plaintiff until he was within 8 feet of them; that Broadway is one of the principal streets in East St. Louis and is heavily traveled by automotive vehicles, of all of which defendant had knowledge; that defendant shoved its train of cars into said avenue so that it constituted an obstruction across said street; that plaintiff, driving his automobile in an easterly direction on said street, was unable to ascertain or discover the presence of the railroad cars until within 8 feet of them; that he was unable to bring his automobile to a stop before it ran against them. The count alleges a collision between his car and the railroad cars and damages to the plaintiff.

The second count alleges that defendant had shoved its railroad cars into Broadway and that they failed to give any warning or notice of the movement of the train upon and across said street, and of the obstruction thereof. The count alleges practically the same as to the inability of plaintiff to see the car; the collision and damages.

Count 3 alleges that defendant had shoved its train of cars into Broadway so that they constituted an obstruction across the street; that while so obstructing said avenue defendant failed to ring a bell or blow a whistle or use any other means to warn plaintiff of said obstruction. This count contains substantially the same allegations as to the inability of plaintiff to ascertain or discover the presence of the railroad cars until within 8 feet of the track, collision and damages.

Defendant answered these counts by admitting certain of the facts, like the control and management of the train, the low built cars and so forth; but denies that the cars were not easily discernible or that their presence could not be ascertained by plaintiff until within 8 feet thereof, and avers that the cars were visible for a great distance. It admits that on the day of the accident its engine was pushing cars into its plant across the street so that the cars temporarily obstructed traffic thereon; denies that the plaintiff in the exercise of ordinary care was unable to discover the presence of the railroad cars on said crossing as alleged.

As to the second count defendant denies plaintiff was in the exercise of due care for his own safety; that he was unable to discover the presence of the train, and so forth; admits the collision.

Answering the third count defendant denies that it failed to ring a bell or blow a whistle, or in the alternative it avers that the omission of both or either of said signals was not the proximate cause of the collision, and denies negligence, and alleges a failure of due care on part of the plaintiff.

Of the additional counts, count 4 alleges the Statute of the State of Illinois providing that every railroad have a bell of at least 30 pounds weight and a steam whistle on each locomotive, causing the same to be rung or whistled at least 80 rods from the place where the railroad crosses any public highway, the same to be kept ringing and so forth. It then alleges that defendant wilfully, wantonly and negligently in violation of the said Statute failed to blow a whistle or ring a bell before entering upon the crossing and so forth, and that as a proximate result thereof plaintiff was injured.

Count 5 alleges that the defendant wilfully, wantonly and negligently caused its train of low built cars to be shoved onto said street and wilfully and wantonly and negligently to obstruct said street and that because thereof plaintiff was injured.

Count 6 alleges defendant wilfully, wantonly and negligently caused its train of low built cars to be shoved into Broadway and wilfully and wantonly and negligently to obstruct said street; that when plaintiff was within 8 feet of the train defendant wilfully, wantonly and negligently caused the...