Spikings v. Wabash R. Co.

• Decision Date: 07 January 1953
• Docket Number: No. 10605.,10605.
• Citation: 201 F.2d 492
• Parties: SPIKINGS v. WABASH R. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

201 F.2d 492 (1953)

SPIKINGS v. WABASH R. CO.

No. 10605.

United States Court of Appeals Seventh Circuit.

January 7, 1953.

Elmer W. Freytag and John W. Costello, Chicago, Ill., for appellant.

James A. Dooley, Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.

MAJOR, Chief Judge.

This appeal is from a judgment for personal injuries sustained by plaintiff as the result of a collision between a truck which he was driving and a train of the defendant railroad. The collision took place at the intersection of 83rd Place and the tracks of the defendant on the outskirts of the City of Chicago. The case was tried to a jury which rendered a verdict favorable to the plaintiff. Defendant's motion for a judgment notwithstanding the verdict was denied, also its motion in the alternative for a new trial.

Grounds urged for reversal are: (1) a failure of proof that plaintiff was in the exercise of due care and caution for his own safety at and immediately prior to the accident, (2) a failure to prove negligence on the part of defendant which proximately caused or contributed to the cause of the accident and (3) the giving of certain instructions tendered by plaintiff, asserted to be erroneous, and the refusal to give certain instructions tendered by defendant, asserted to be proper. A thorough study of the record leads us to the conclusion, for reasons subsequently disclosed, that the first issue must be decided adversely to plaintiff.

The collision took place at 5:30 p. m., February 6, 1948, when plaintiff's truck was struck by defendant's passenger train No. 10, known as the Banner Blue. The train was destined for Chicago and was traveling northeast. 83rd Place is a paved street approximately thirty feet wide, running east and west. Defendant's tracks run northeast and southwest and intersect 83rd Place at a 45-degree angle. There are three sets of tracks at the intersection; the westerly is a switch, the middle is the main southbound and the easterly is the main northbound. 83rd Place about two hundred feet west of the railroad intersection merges with Southwest Highway, which also runs in a northeast and southwest direction. Something more than three hundred feet east of the point of collision, 83rd Place intersects the Grand Trunk Railroad tracks, which extend directly north and south and cross the Wabash tracks at Ashburn Station. The latter is located four hundred and twenty feet northeast of the point of collision. Southwest of the point of collision the first crossing is Lawndale Street, a distance of four hundred and forty feet, and the next crossing is 87th and Crawford Avenue, a distance of about one mile.

Defendant's tracks run straight and directly southwest for more than a mile from 83rd Place and are slightly elevated above the surrounding territory. The view of a traveler on 83rd Place from whichever direction he approaches the railroad intersection is unobstructed, and particularly is this so as he approaches from the west, the direction from which plaintiff approached. The territory between 83rd Place and the railroad contains no buildings or other obstructions; it is vacant land.

Twenty-three Wabash trains passed the intersection in question during the 24-hour period immediately prior to the accident, and approximately the same number of trains crossed said intersection at approximately the same hour each day for a period of thirty days prior thereto. A traffic count showed that an average of 363 vehicles and 111 pedestrians crossed the intersection daily. Some witnesses described the tracks as "pretty rough," but there is nothing to indicate that they were any different in that respect than the ordinary highway-railroad intersection. There were no street lights at the intersection and no gate flashers or watchmen. The crossing was protected only by the conventional cross-arm signals.

Plaintiff, 33 years old at the time of the accident, had been driving a truck about two and one-half years. At that time he was a salesman for the Coca Cola Company, and was driving a Chevrolet ton and a half bottler's body truck, which was regularly assigned to him. The color of the truck body was yellow. As the driver, he sat in a somewhat elevated position, in contrast to the position occupied by the driver of a pleasure car. Plaintiff had lived within the vicinity of the scene of the accident for twenty-five years and was familiar with the layout of the tracks, the streets and the vicinity adjacent thereto. He had passed over this intersection many times before the accident and knew that fast trains were run in both directions.

As noted, the train involved was defendant's Banner Blue, one of its best passenger trains traveling from St. Louis to Chicago. The speed was variously estimated by the witnesses as between 55 and 75 miles an hour. Only one witness, a passenger, estimated it as high as "about 75 miles an hour." One witness expressed the opinion that the speed was 55 miles per hour, six others estimated it as 60 to 65 miles an hour. It was stipulated, however, that the train traveled from Chicago Ridge to Ashburn Station, a distance of 4.2 miles, in four minutes. It follows from this that its speed was 63 miles an hour. The train left Decatur, Illinois, nineteen minutes late and was seventeen minutes late at the time of the accident. Decatur is 173 miles from downtown Chicago. At or immediately before the collision the brakes were applied and the train stopped in less than half a mile, which was shown to be a good stop considering the size and speed of the train.

The facts so far related are without dispute. Plaintiff's argument in support of the judgment rests mainly, if not entirely, upon the premise that the train was traveling in the dark without a headlight, as is required by Illinois statute, Ch. 114, Ill.Rev. Stat. § 187. It is upon this premise that plaintiff attempts exoneration for failure to discover the approaching train in time to avoid the collision. It is true the witnesses described the situation relative to darkness or light in varying terms. It was described as being dark, light, a little bit light, a little bit dark, dusk, light enough to see, etc. The confusion results in some measure from the fact that some witnesses were describing the situation at the time of the collision and others twenty-five or thirty minutes later. The weather on the date in question was clear and cold, the ground was covered with snow which had previously fallen, sunset was at 5:12 p. m., and the collision took place eighteen minutes later or at 5:30 p.m. It is obvious that darkness was rapidly approaching and that the situation relative thereto twenty or thirty minutes later was of little consequence. It is significant, however, that with the exception of the plaintiff, all occurrence witnesses, both those for the plaintiff and the defendant, testified that their visibility was sufficient for them to see the approaching train. Plaintiff urges, however, that the verdict of the jury "is conclusive upon the question of darkness." Assuming that such is the case, we fail to see how it is of any benefit to the plaintiff unless the train was traveling without the required headlight. It is a matter of common experience that an approaching train traveling in the dark with the required headlight is as readily discernible as one traveling in daylight.

We now come to the testimony of the witnesses, and first those offered by plaintiff. Recognizing the rule that plaintiff is entitled to have this testimony considered in the light most favorable to him, we have given it careful and thoughtful consideration. Plaintiff testified that as he approached the crossing, traveling east on 83rd Place, he stopped about ten feet west of the first rail of the switch track and talked to a boy. He then started up and stopped again within four or five feet of the first rail of the switch track. At that time he looked both ways and saw nothing coming. He said he could see about two hundred feet to the right and the same distance to the left. He again started up and, when just about at the first rail of the southbound track, he looked to his right and left but didn't see the train and didn't hear any noise at that time. As he got to the first rail of the third track (northbound), he heard a noise, looked out the right window and saw a black object which appeared to be a locomotive. When he heard the noise which caused him to look to his right, the front wheels of his truck were just over the first rail of the northbound track. Both of his windows were open about two inches to keep the frost off the windshield. He was asked by his own counsel, "Did you hear any whistle sounded at any time?" and he answered, "No sir, I did not," and also, "Did you see or observe any light on the black object?" and he answered, "No sir." Plaintiff also stated that as he proceeded toward the railroad tracks there were no vehicles either approaching or following, there was no noise from traffic and it was perfectly quiet out there. It might be added there was no other train at or near the crossing, either on the southbound main or on the switch track.

Elizabeth Raney, a witness for the plaintiff, testified that at the time of the accident she lived in an apartment building at 3534 West 83rd Place. This building was located two hundred feet east of the Grand Trunk tracks or something more than five hundred feet from the intersection where the accident occurred. She was in her apartment preparing dinner, and looking out the kitchen window had a clear, unobstructed view of 83rd Place west of the point of the accident. She saw a truck traveling east on 83rd Place when it was about half-way between the Southwest Highway and the railroad crossing. Thus, the truck was more than six hundred feet distant when first seen by her. At that time she observed that the truck was yellow. About half a minute later she looked...