Wabash Ry. Co. v. Zayac
| Decision Date | 21 February 1929 |
| Docket Number | No. 3992.,3992. |
| Parties | WABASH RY. CO. v. ZAYAC. |
| Court | U.S. Court of Appeals — Seventh Circuit |
L. V. Hill, of Hillsboro, Ill., for plaintiff in error.
J. Earl Mayor, of Hillsboro, Ill., for defendant in error.
Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges.
On June 14, 1925, at 5:55 a. m., the engine of defendant's passenger train of nine cars struck the automobile of, and killed, John Zayac, on the highway where it crosses three of defendant's tracks, three blocks inside of the city limits of Staunton, Ill., a place of some 6,000 people. The plat below shows the crossing:
Standing at a, facing the crossing to the west b, one would be within a 20-degree angle, formed by the highway c, along which Zayac was driving toward the crossing in his open uncurtained Ford car, and the railroad tracks d, on the middle one of which the train moved west towards the crossing.
After defendant's motion for a directed verdict was denied, there was a verdict, and judgment thereon, for plaintiff, Zayac's administrator.
Defendant contends that Zayac was guilty of contributory negligence.
It is not claimed that a speed of 60 to 70 miles per hour in itself constituted negligence, but it is claimed that dense fog, weeds, a warning sign, and failure to have a watchman at the crossing, together with the speed of the train, constituted negligence.
Three witnesses for plaintiff testified to a train speed of from 60 to 70 miles per hour. Not one of them showed any experience that specially qualified him to judge of the speed of trains. One of them had given a statement contrary to his testimony on the stand, and another could not tell whether the house in which he lived was 20 or 2,000 feet long. Each judged of the speed of the train from a position practically in front of the train. It is hardly possible that the train, shown to have a slow schedule all the way from Litchfield to St. Louis, and which lost one minute in coming 14 miles from Litchfield to Staunton, on a schedule that was less than 36 miles per hour, was going at nearly double that rate of speed at the crossing. The train ran 3,000 feet before it was stopped, the reason given by the trainmen being that the rails were slippery from a heavy dew. The trainmen said they had not measured the distance, but estimated that the stop was made in 1,800 to 2,000 feet. That statement is urged against them as showing their unreliability. At the same time, they said that when the train stopped, the engine was 200 feet west of the station, which was some 3,400 feet west of the crossing. Whereas, plaintiff's witnesses said that the engine was 300 feet east of the station.
The only testimony that there was any fog at any time in the morning comes from plaintiff's witnesses. One testified that it was very foggy about 5:10. Another said that it had cleared up toward 6 o'clock, but that there was a fog at 6 o'clock. What the fog amounted to at that hour is not shown, but that it could not have hidden the train or perceptibly obscured Zayac's vision is made clear by the testimony of plaintiff's witnesses as to objects seen by them. One witness, 200 to 300 feet from the crossing, saw the automobile, headed west, with people in it, stop at the crossing. Another, 300 feet south of the crossing, saw people in both seats of the automobile as it stopped 10 or 15 feet from the north track. Another, who was at an ice house 900 feet south of the crossing, saw, after the crash, the car carried upon the engine...
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