Rakers v. Southern Ry. Co.
| Decision Date | 27 November 1972 |
| Docket Number | No. 70--31,70--31 |
| Citation | 8 Ill.App.3d 877,290 N.E.2d 421 |
| Parties | Jerome B. RAKERS, Administrator of the Estate of Robert Rakers, Deceased, and Roberta Rakers, Deceased, Plaintiff-Appellee, v. SOUTHERN RAILWAY COMPANY, a corporation, et al., Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
David H. Bremer, Roberts, Gundlach & Lee, Balleville, Chapman, Talbert & Chapman, Granite City, for defendants-appellants; Morris B. Chapman, Norman H. Kinder, Jr., Granite City, of counsel.
Listeman, Bandy & Hamilton, Belleville, for plaintiff-appellee; Charles E. Hamilton, Belleville, of counsel.
This action was brought by the plaintiff Jerome B. Rakers in his capacity as the Administrator of the Estates of Robert Rakers and Roberta Rakers, his deceased minor children. Robert Rakers was eight at the time of his death and Roberta Rakers was five years of age when she was killed. The action was brough for the alleged wrongful deaths of the two children. The plaintiff sought to recover damages against the Southern Railway Company for its negligenct operation of a freight train and recovery was also sought from the Estate of Edmund Rakers, deceased, for wilful and wanton misconduct in driving the truck in which the deceased children were riding as passengers at the time of their deaths.
The case was tried to a jury in the Circuit Court of St. Clair County which returned a verdict against both defendants awarding damages to the plaintiff in the amount of $30,000 for the death of Robert and a sum of $20,000 for the death of Roberta. The court entered judgment on the verdicts. From that judgment this appeal is brought by both defendants.
Robert and Roberta Rakers were killed shortly after 9:00 a.m. on July 18, 1966. At the same time, their uncle, Edmund Rakers, and his son were also killed in the same vehicle-train collision. Edmund Rakers, the driver, was the brother of Jerome Rakers, the father of the deceased Robert and Roberta. Jerome owned farmland which Edmund farmed as a tenant farmer. The deaths occurred when the farm truck in which the four were riding was struck by a Southern Railway Company engine on a crossing of the company's track and a rural road approximately one-half mile east of the Village of Posey, Clinton County, Illinois.
The day of the collision was clear, hot and dry; visibility was good.
On the morning of the tragedy, Edmund was driving his falt-bed farm truck and pulling a wagon trailer. The overall length of the truck and trailer combined was approximately 40 feet. Edmund had been hauling grain from the farm to the grain elevator in Carlyle, Illinois. Jerome was the operator-owner of the elevator. Earlier in the morning Edmund had brought two loads of grain to the elevator and at the time of the collision, Edmund and his passengers were returning to the farm for more grain. The farm is located approximately one-half mile north of the crossing in question.
On the morning in question Jerome had seen his two children riding with Edmund and Edmund's son. Jerome had no objection to this. At the trial Jerome testified that to his knowledge Edmund's vision and hearing were normal. Jerome also testified that the truck in question had been owned by him and that he had sold it to Edmund some seven months before the collision. Jerome further testified that he had driven the truck on Saturday and Sunday before the collision (which occurred on Monday) and that the truck was in good mechanical condition and equipped with booster brakes that were also in good condition on the day before the collision.
The evidence indicates that as Edmund approached the said crossing, he was proceeding in an easterly direction on Illinois State Route #161. In the area of the crossing Route #161 lies approximately 75 feet south of and parallel to the railroad track. The crossing of the blacktop farm road is about one-half mile east of the Village of Posey. The farm road runs in a north-south direction and bisects the railroad track at a 90 angle. The railroad track and Route #161 run flat and straight for over a quarter of a mile west of the crossing. Photographs introduced into evidence show that a motorist proceeding in an easterly direction on Route #161 and then turning left or north onto the rural road has an unobstructed view in excess of 1/4 mile to the west toward the Village of Posey. The unobstructed view includes the railroad track and any train that might be on the track. All ground in the area of the crossing is level. The crossing had cross-buck 'railroad crossing' signs on the southeast and northwest corners.
Mr. Richard Brinkman, a farmer age 46, who had lived in the Carlyle area most of his life was the only witness to the collison. Mr. Brinkman was traveling in his one-ton truck in a westerly direction on Route #161. He stated he first observed the train when he was approximately 1400 feet east of the crossing. The train was coming toward him and was about 500 to 1000 feet west of the crossing when he first observed it, and its headlight was on. He estimated the speed of the train to be between 40 and 45 miles per hour. He first observed the truck as it was turning off of Route #161 onto the rural road. He estimated the speed of the truck to be approximately 5 to 10 m.p.h. He said the truck did not stop before continuing onto the tracks.
Mr. Brinkman testified that at the time Of collision he was some 800 feet from the crossing. Mr. Brinkman was able to plainly see and observe without obstruction the events as they unfolded before him. He was driving with his truck windows open. He testified that he did not hear a whistle blowing, although it may have been blowing and he not have heard it because of the air noise of the wind. After seeing the collision Mr. Brinkman did not stop but continued driving west to the Village of Posey to telephone for an ambulance. He thereafter returned to the scene.
Mr. Eugene Twenhoeffel, age 44, testified that he had resided most of his life in the rural area surrounding the crossing. At the time of the collision he was visiting at his parents' home, which was located a half-mile east and a half-mile north of the crossing. Mr. Twenhoeffel farmed his parents' property and at the time of the collision, he was taking a break, having a drink of water with an employee in the yard of his parents' house. The first knowlege Mr. Twenhoeffel had of the collison was when he heard a loud noise or crash. He testified that he watched the train but didn't hear anything pertaining to the train before the crash. Mr. Twenhoeffel also stated that he was talking with his 'hired hand' and didn't recall anything prior to the crash. He did admit that he didn't hear every whistle of every train that went by on the track in question.
Mr. George Roper, a farmer and retired Illinois Central Railroad employee, on the day of the collision resided on a farm which was situated approximately a quarter of a mile to the west of the crossing. Mr. Roper had an unobstructed view of the crossing from his house and yard. The house was located between Route #161 and the railroad tracks, the track being about 70 feet north of the house. As the trains pass they make a good deal of noise and a lot of vibration.
Shortly before the collision, while sitting on his front porch, Mr. Roper recalled observing the truck and wagon pass in front of his home. Next Mr. Roper became aware that a train was passing because it made a lot of noise and vibration. The speed of the train was estimated to be between 45 and 50 miles per hour. He stated he heard a 'thump-like' noise and then he jumped into his car and went to the scene.
Concerning whether or not be heard a whistle or horn before the crash, Mr. Roper testified that he did not hear any before the impact of the collision. The question was asked 'were you close enough you could have heard it if one had blown?' He responded 'I could have heard it, but the train made so much noise I just don't think about it.' His testimony was that he did not have a recollection one way or the other whether or not the whistle was or wasn't blown prior to the crash. Mr. Roper had lived in his home by the railroad tracks for 30 years.
The next to testify was Trooper Norman Detterman, a veteran of 12 years with the Illinois State Patrol. In July, 1966, his primary duty was the investigation of accidents and highway patrol. He arrived upon the scene about 9:20 to 9:25 the morning of the collision.
He stated that there had been a train-vehicle collision, that the four occupants of the vehicle had been ejected, that the truck had been dragged three-tenths of a mile down the track while the box wagon had remained at the intersection. His testimony concluded with the identification of photographs of the scene and testimony of the measurements he had taken.
The plaintiff called as his witness Gerald Osman, age 29, the brakeman on the train. Mr. Osman stated that the freight train consisted of an engine, eight cars and a caboose. The train had left East St. Louis that morning eastbound. Osman further stated that Mr. Lawrence Wirtz was the engineer and he was located on the left, or north, side of the engine. Osman was serving in the capacity of brakeman and was seated on the right, or south, side of the engine. The conductor was Billy B. Gash, who was situated in the caboose approximately 500 feet to the rear of the engine. The flagman was Ronald L. Roberson, who had been seated in the front seat on the right, or south, side of the engine. Before the collision Roberson had left his position and had gone to the men's room, which is located at the rear of the engine cab, where he was at the time of the accident. The final crewmember was Mr. J. Nichols, the fireman, who was seated in the middle of the cab on a low seat (prior to and at the time of the accident).
On the date in question, Mr. Osman had been a brakeman with Southern for only a...
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...heard the whistle had it been blown. Berg v. New York City R.R. Co., 391 Ill. 52, 62 N.E.2d 676, 680 (1945); Rakers v. Southern Ry. Co., 8 Ill.App.3d 877, 290 N.E.2d 421, 428 (1972). Application of this rule in the Illinois appellate courts has not been entirely consistent. In Rakers three ......
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