Tucker v. New York, C. & St. L.R. Co.
| Decision Date | 20 November 1957 |
| Docket Number | No. 34438,34438 |
| Citation | 147 N.E.2d 376,12 Ill.2d 532 |
| Parties | Mervin TUCKER, Appellant, v. NEW YORK, CHICAGO & ST. LOUIS RAILROAD COMPANY, Appellee. |
| Court | Illinois Supreme Court |
William L. Turner, Shelbyville and Earl S. Hodges, Springfield (Duane L. Traynor, Springfield, of counsel), for appellant.
Baker & Baker, Shelbyville, and Pope & Driemeyer, East St. Louis (John J. Baker, Shelbyville, and Frank M. Rain, East St. Louis, of counsel), for appellee.
This is an action for personal injuries sustained by plaintiff when the truck he was driving collided with defendant's freight train at a grade crossing. The jury returned a verdict for plaintiff in the sum of $12,250 and the trial court entered judgment thereon. The Appellate Court reversed this judgment on the ground that the trial court should have allowed defendant's motion for a directed verdict because plaintiff was guilty of contributory negligence as a matter of law. We granted leave to appeal from the judgment of the Appellate Court.
The determinative question presented to us is whether the evidence, taken most favorably to the plaintiff, shows that he was guilty of contributory negligence as a matter of law. While this court is precluded from weighing the evidence, except as to equitable issues, to determine where the preponderance lies (Ill.Rev.Stat.1955, chap. 110, par. 92(3)(b)), where a motion is made in the trial court to direct a verdict, we may examine the evidence to determine whether, as a matter of law, there is any evidence in the record to prove the essential elements of the case. Robinson v. Workman, 9 Ill.2d 420, 137 N.E.2d 804; Illinois Central Railroad Co. v. Oswald, 338 Ill. 270, 170 N.E. 247.
Plaintiff contends that his testimony, a plat, and a profile map of the crossing, raise a question of fact for the jury as to his exercise of due care. In considering this contention we have examined the entire record.
The rule of law, to be applied in determining whether the trial court should have directed a verdict for the defendant, is clear. A motion for a directed verdict should be allowed if, when all the evidence is considered, with all reasonable inferences to be drawn therefrom in its aspects most favorable to the party against whom the motion is directed, there is a total failure to prove one or more essential elements of the case-in the case at bar, the element of due care. Carrell v. New York Central Railroad Co., 384 Ill. 599, 52 N.E.2d 201; Greenwald v. Baltimore & Ohio Railroad Co., 332 Ill. 627, 164 N.E. 142; Illinois Central Railroad Co. v. Oswald, 338 Ill. 270, 170 N.E.2d 247.
The plaintiff testified that on September 4, 1953, he was driving a truck, picking up milk; that about 8:00 A.M., while driving 20 to 25 miles per hour, he approached the grade crossing in question in open country; that he had crossed at this particular point every day for a about nine months; that the day was cloudy, with a little mist and fog, but the visibility was about two miles; that he looked northeasterly, to the right, and saw telephone poles and timber about a quarter of a mile down the track; that he drove his truck up to 9 or 10 feet from the south rail of the track, stopped, scooted over to the right door, rolled the window down and looked to the right; that he saw the telephone lines, railroad tracks, the top of the telephone shack and sprouts and weeds, as he looked down the track, but did not see or hear any train; and that he then rolled up his window, scooted back in his seat and started across the tracks when the train, approaching from the northeast, hit the rear end of his truck. On cross-examination he testified that the telephone shack was located near the track about 275 feet northeasterly from the crossing; and that when he looked to the right from the truck window, while stopped, he could see at least 200 feet beyond the telephone shack.
We find no other testimony in the record to either corroborate or add to the foregoing testimony as to plaintiff's due care. While it is true that plaintiff's witness Earl Endsley and defendant's witnesses Berl Waters and Carlos Lloyd were eyewitnesses of the collision, yet their testimony fails to substantiate due care on the part of the plaintiff. The physical conditions at the crossing are shown by a plat and profile map offered by plaintiff, and by eight photographs submitted by defendant. All exhibits were admitted in evidence by stipulation.
There is no substantial...
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...461; Zank v. Chicago, Rock Island and Pacific Railroad Co., 17 Ill.2d 473, 477, 161 N.E.2d 848 and Tucker v. New York, Chicago and St. Louis Railroad Co., 12 Ill.2d 532, 534, 147 N.E.2d 376, all unmistakably indicate that we adhere to the former view. The issue upon which there should be cl......
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