Zank v. Chicago, R. I. & P. R. Co.

• Decision Date: 24 September 1959
• Docket Number: No. 35147,35147
• Citation: 161 N.E.2d 848,17 Ill.2d 473
• Parties: Richard ZANK, Admr., Appellant. v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY et al., Appellees.
• Court: Illinois Supreme Court

Page 848

161 N.E.2d 848

17 Ill.2d 473

Richard ZANK, Admr., Appellant. v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY et al., Appellees.

No. 35147.

Supreme Court of Illinois.

Sept. 24, 1959.

As Modified on Denial of Rehearing Nov. 16, 1959.

Joseph Barbera, Chicago, for appellant.

Erwin W. Roemer, Chicago (Joseph P. Carr, Chicago, of counsel), for appellee Chicago, Rock Island and Pacific Railroad Co.

Charles D. Snewind, Chicago, for appellee Edna Stangle.

DAVIS, Justice.

This is an action for personal injuries suffered by plaintiff's intestate, Lillian Zank, when a car in which she was riding collided with a passenger train of the defendant Chicago, Rock Island and Pacific Railroad Company, herein called the railroad. Plaintiff's intestate died thereafter from other causes and plaintiff sued both the railroad and the defendant driver Edna Stangle, herein called the driver. Upon trial, the court overruled defendants' motions for a directed verdict, for judgment notwithstanding the verdict and for new trial, and entered judgment against both defendants on the jury verdict in the sum of $15,000.

The Appellate Court reversed and remanded with directions to the trial court to enter judgment for defendants notwithstanding the verdict on the ground that a directed verdict should have been entered for the defendants because there was no evidence establishing the decedent's freedom from contributory willful and wanton misconduct. 19 Ill.App.2d 278, 153 N.E.2d 482. We granted leave to appeal.

The complaint charged the railroad with negligence and the driver with willful and wanton misconduct. The general and long accepted rule of law is that contributory negligence of the plaintiff is a defense for a defendant charged with negligence. The corollary of this rule, which is of more recent origin, is that contributory willful and wanton misconduct of the plaintiff is a defense for a defendant charged with willful and wanton misconduct. Valentine v. England, 6 Ill.App.2d 275, 276, 127 N.E.2d 473; Gulf, Mobile & Ohio R. Co. v. Freund, 8 Cir., 183 F.2d 1005, 21 A.L.R.2d 729; Lane v. Bobis, 340 Ill.App. 10, 91 N.E.2d 106; Willgeroth v. Maddox, 281 Ill.App. 480; Restatement of Torts, vol. 2, sec. 503.

Thus, the determinative question presented to us is whether the evidence, taken most favorably to the plaintiff, shows that plaintiff's intestate was guilty of contributory willful and wanton misconduct as a matter of law. If she was guilty of such misconduct, the verdict against the driver must fall and, a fortiori, the verdict against the railroad cannot stand.

While we are precluded from weighing the evidence, except as to equitable issues, to determine where the preponderance lies (Ill.Rev.Stat.1957, chap. 110, par. 92(3)(b)) where a motion is made in the trial court to direct a verdict, or for judgment notwithstanding the verdict, or where the Appellate Court directs or enters such judgment, 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. Tucker v. New York, Chicago & St. Louis R. Co., 12 Ill.2d 532, 147 N.E.2d 376; Robinson v. Workman, 9 Ill.2d 420, 137 N.E.2d 804; Illinois Central R. Co. v. Oswald, 338 Ill. 270, 170 N.E. 247.

It is clear that in deciding that the plaintiff cannot recover as a matter of law, we must first consider all the evidence in the aspect most favorable to the plaintiff, together with all reasonable inferences to be drawn therefrom. If, when so considered, there is any evidence, standing alone and considered to be true, together with the inferences that may legitimately be drawn therefrom, which fairly tends to support the jury verdict, it is error for the Appellate Court to direct a judgment notwithstanding the verdict. Tucker v. New York, Chicago & St. Louis R. Co., 12 Ill.2d 532, 147 N.E.2d 376; Seeds v. Chicago Transit Authority, 409 Ill. 566, 101 N.E.2d 84; Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.E.2d 847.

The collision in which plaintiff's intestate was injured occurred in Chicago at 4:00 P.M. on January 3, 1952, at the right angle intersection of 94th Street, which runs in an easterly and westerly direction, and the railroad's double tracks. The streets were icy and slippery but it was light and clear. Houses are located on the four corners of the intersection, together with trees and shrubbery, and cinders and dirt were embanked on the edge of the right of way, all of which tended to impair the visibility. The driver testified that the house on the northeast corner would obstruct visibility to the north until a westbound vehicle was within 10 feet of the first track, while an employee of the railroad testified that the house would obstruct the view until such vehicle was within 50 feet of this track. The photographs of the locale also substantiate the contention of limited visibility at the intersection.

The driver proceeded west on 94th Street at a speed of 10 to 15 miles an hour, and testified that she slowed down to two to three miles per hour when she was 15 feet from the first or northbound track; that she looked to the south and saw no approaching northbound train; and that, while still on the northbound track, she looked to the north and saw a train approaching on the second or southbound track, about 100 feet away. There was a distance of 13 feet between the northbound and southbound tracks and a slight incline toward the second or southbound track, and in relating the subsequent events, she said, 'I stepped on the gas in an attempt to get by in order to beat the train across the tracks.' She did not remember engaging in any conversation with the plaintiff's intestate who sat to her right.

An employee of the railroad saw the driver looking toward the passenger, which would be to the north, and testified that they were engaged in conversation, but he did not pay too much attention to the passenger. He further testified that when the automobile was 10 to 15 feet east of the southbound track and the train was five or six feet north of 94th Street, he waved both hands and hollered, 'Stop;' and that the car was approaching at 15 miles per hour, but he does not know if it slowed down. The driver testified that she did not hear a bell ringing as she approached the crossing, but the railroad employee testified that the automatic bell, which had been out of order, was ringing.

The only crossing protection at the intersection was two crossbuck railroad crossing signs and a single crossing bell which was activated by an electrical impulse. The engine of the southbound train collided with the right front corner of the car, causing injuries to plaintiff's intestate.

In addition to the general verdict, the jury, in a special interrogatory, found that the driver was guilty of willful and wanton misconduct at the time of or just before the occurrence. The Appellate Court found that the special interrogatory was not against the manifest weight of the evidence and further found, as a matter of fact, that the driver drove at a speed of three or four miles per hour onto the northbound track before looking north; that when she looked to the north and saw the approaching train, it was 150 feet away; and that despite the snow and ice on the crossing, she tried to 'beat the train' across the intersection, although she was then travelling only three or four miles per hour and had the width of the northbound track plus the adjacent 13 feet to the southbound track within which to stop. These findings of the Appellate Court are not subject to review here. Ill.Rev.Stat.1957, chap. 110, par. 92(3)(b).

Defendants contend that the same facts that support the answer to the special interrogatory determine that the plaintiff's intestate was guilty of contributory willful and wanton misconduct as a matter of law. On this ground the Appellate Court reversed the judgment and remanded the cause to the trial court with directions to enter judgment for defendants notwithstanding the verdict. However, plaintiff contends that the evidence, together with the reasonable inferences to be drawn therefrom, tends to establish the due care of the decedent, and therefore creates a question of fact for the jury.

We have carefully examined the record to determine if there is any evidence of due care on the part of plaintiff's intestate. There is evidence tending to prove that the driver of the car drove carefully toward the railroad tracks at a speed of 10 to 15 miles per hour; that she then slowed down to three or four miles per hour as she came to the crossing; that she looked to the south and saw no train, went upon the first or northbound track and then looked to the north and saw the approaching southbound train. The jury could have found from the evidence that the driver saw the southbound train on the second track in ample time to stop her car but instead stepped on the gas in an effort to beat the train across the track; and that the plaintiff's intestate, who did not know how to drive, sat quietly at the driver's side and did nothing to distract her or to interfere with her operation of the car. The foregoing permissible inferences are buttressed by the findings of fact in the opinion of the Appellate Court.

On the basis of these findings of fact and the resultant permissible inferences, we cannot believe that all reasonable men would agree that the plaintiff's intestate was not in the exercise of due care and caution for her own safety, or that she was guilty of contributory negligence and willful and wanton misconduct. Contributory willful and wanton misconduct, like contributory negligence, becomes a question of law when it can be said that all reasonable minds would reach the conclusion, under a particular factual situation, that the facts did not establish freedom from such negligence or misconduct. Cf. Tucker v. New York, Chicago & St. Louis R. Co., 12 Ill.2d 532, 147 N.E.2d 376; ...