Appeal by plaintiffs from the Superior Court of Cook County;
the Hon. WILBERT F. CROWLEY, Judge, presiding. Heard in the third
division of this court for the first district at the June term,
1949. Judgment reversed and cause remanded with directions.
Opinion filed May 3, 1950. Rehearing denied May 23, 1950.
Released for publication May 23, 1950.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.
Rehearing denied May 23, 1950
Yvonne Chapman and Mildred Marchese sued the Baltimore & Ohio Railroad Company and Jay Bilthuis for injuries received in a railroad crossing mishap while guest passengers of Bilthuis, charging the corporation with negligence and Bilthuis with wilful and wanton misconduct. At the close of plaintiffs' evidence the court directed a verdict in favor of Bilthuis and entered judgment thereon. The case proceeded against the corporate defendant and resulted in verdicts of guilty, one assessing Miss Chapman's damages at $5,000, and the other assessing Miss Marchese's damages at $500. Judgment was entered on the verdicts. Subsequently, on motion of the railroad, the court entered judgment in its favor notwithstanding the verdicts, and also conditionally granted it a new trial. Plaintiffs appeal. For convenience we will call the railroad corporation the defendant and Bilthuis by his name.
The injuries were sustained at about 2:00 a.m. Saturday, March 9, 1946, at a grade crossing on West 71st street, an east and west street in Chicago. The crossing is located about 3 1/2 blocks east of Western avenue. The B. & O.C.T. railroad tracks run north and south and cross 71st street at right angles. These tracks are used exclusively for freight traffic. At the time of the occurrence the crossing was not protected by any watchman, gate or flasher lights. Defendant's freight train involved in the case started the evening of Friday, March 8, 1946, from Garrett, Indiana, on a regular run to Glen Yard, Chicago. The Glen Yard is located west of Brighton Park, Chicago, on the Alton line, the B. & O. turning off on the Alton tracks where it crosses that line at about 40th street. Defendant's train was operating over the right of way of the B. & O.C.T. The freight train was not running on a definite schedule. It was proceeding north and consisted of a steam locomotive, 14 cars and a caboose. On the way to the Glen Yard the train was first reduced by setting off cars at the Barr Yard near 135th and Halsted streets. From there the 14 cars were to be taken to Glen Yard, with 71st street, where plaintiffs were injured, to be crossed on the way. The crossing at 71st street consists of three tracks. From west to east they are: a siding track, the southbound main and the northbound main. The train was traveling in the northbound main. The first north and south street to cross 71st street east of Western avenue is Claremont avenue. Oakley avenue, a north and south street, crosses 71st street a block east of Claremont avenue, and Bell avenue, another north and south street, intersects 71st street a block east of Oakley avenue. From Bell avenue to the railroad crossing is another half block or so.
Plaintiffs live a half mile east of and were acquainted with the crossing. Bilthuis had attended high school in that neighborhood. He was familiar with the crossing and had traveled over it often. On Friday evening, March 8, 1946, Bilthuis, aged 21, accompanied by his friend Andrew Waitches, about 25 years old, and called at the home of Yvonne Chapman, 18 years old, and her next door neighbor, Mildred Marchese, 20 years old. The four then left in a four-door 1941 Nash sedan automobile, driven by Bilthuis and owned by his father, to go skating at the Arena on the north side of Chicago. On the return trip from the Arena it was sleeting, turning to snow, and the roads were slippery and slick. The parties stopped at a restaurant near 47th and Western avenue, after which they proceeded south to 71st street, where they turned east. From the time they left the restaurant until the occurrence the weather was clear. Miss Chapman was sitting to the right of Bilthuis, the driver. Miss Marchese sat to the left of Waitches on the rear seat. At the time 71st street was icy. In this respect, however, it was no different from the other streets over which the parties had traveled. Bilthuis testified that his highest speed on 71st street was 15 to 25 miles an hour. He said his car did not tend to slide around because it was not going fast. The car had sealed beam headlights. When the car was traveling on 71st street they were adjusted for country driving and threw a beam of light for about a block. He said that the brakes were in good working order.
Photographs as to the conditions surrounding the crossing were introduced by the respective parties. These show that the distance from the east curb of Bell avenue to the tracks is about 250 feet and that the paved portion of Bell avenue is 30 feet wide. The intervening natural terrain for at least two or three blocks south of 71st street is level. The tracks, however, run on an artificial embankment, which at 71st street is about eight feet high. Consequently, 71st street is so graded as to carry the roadway up to the top of the embankment. The resulting incline of the street, as one proceeds east, begins a short distance east of Bell avenue and ends just before the first (west) track is reached. The crossing itself is level. The tracks run slightly uphill as they come north. At 71st street and for two or three blocks to the south the area between Bell avenue and the tracks contains no buildings, trees, bushes or other obstructions. At the west side of Bell avenue is a "slow" sign for eastbound traffic. A photograph shows a square sign with its post embedded in the south parkway of 71st street about a third of the way, as one travels east between Bell avenue and the crossing. A crossing (crossbuck) sign was located 15 feet and 11 inches west of the west rail of the first (siding) track and 7 feet south of what would be the south curb of 71st street. A motorist driving east on 71st street would first observe the "slow" sign on the west side of Bell avenue, then the square sign east of Bell avenue and lastly the crossbuck sign.
Bilthuis testified that he did not see any headlights; that he did not see any light toward the south or any train approaching; that he was listening for a whistle or a bell; that he did not hear any; that he continued to listen for a whistle or bell until he got up to the tracks; that he heard neither during that time; that he came upon the crossing at a speed of 15 miles an hour; that the locomotive was moving up 5 or 10 feet south of the south crosswalk when he saw it; that the first thing he saw was the numeral lights of the engine on the side up near the smokestack; that he could not see the headlight apparatus; that there was no glare on the tracks ahead of the engine; that at the first sight of the illuminated numerals the front of his car was 15 feet from the track the train was on; that as soon as he saw the engine he applied the brakes; that the car started to slide; that it slid about 5 feet with the brakes on; that then, because of the sliding, he released the brakes and cut the wheel a little bit to the north; and that the car "sort of responded" to the turn of the steering wheel and the side of the engine caught the right front of the automobile, tore off the hood and twisted the car around so that it stopped facing west. What distance, if any, the car moved between the cut of the wheel and the impact does not appear. At the time of the impact the car was a few feet out of its original path and part of the car was on the north half of the pavement. After the occurrence the car was on the gravel north of the pavement. An exhibit shows that the whole front of the car was crushed back and somewhat from right to left. The point of impact on the locomotive was somewhere along the left side a little ahead of the cab. Bilthuis said his car did not stop from the time he first saw the train until the impact and that the reason was that the car was sliding and skidding on the ice. Miss Chapman was thrown out of the car and beneath it and Miss Marchese was thrown from the rear seat to the floor. When it stopped, the rear of the train was about four car lengths north of 71st street.
[1-3] The first point advanced by plaintiffs is that they made out a prima facie case against the defendant railroad and that the court erred in entering judgment in its favor notwithstanding the verdicts. Defendant maintains that it was entitled to judgment notwithstanding the verdicts; that the sole proximate cause of plaintiffs' injuries was the conduct of Bilthuis in taking the automobile into the side of defendant's engine; that there was no evidence tending to show that it was guilty of any negligence; that plaintiffs were not in the exercise of due care for their own safety; and that the icy condition of the street was the proximate cause of their injury. By a motion for judgment notwithstanding the verdict the sole question presented to the court is whether, admitting the evidence in favor of plaintiffs to be true, that evidence, together with all legitimate conclusions and inferences, fairly tends to sustain their cause of action. In deciding such a motion the court has no right to pass upon the credibility of the witnesses, to consider any purported impeachments, the weight thereof, or the weight of the testimony. Vieceli v. Cummings, 322 Ill. App. 559. In deciding whether the court erred in allowing judgment notwithstanding the verdicts, we shall consider only the evidence in favor of the plaintiffs. Plaintiffs charge that the proximate cause of the occurrence was the negligence of defendant in operating its train without headlight, bell or whistle up to the point where the engine was when Bilthuis first saw it. Sec. 6 of an Act in relation to fencing and operating railroads (par. 59, ch. 114, Ill. Rev. Stat. 1949 [Jones Ill. Stats. Ann. 114.095]) provides that every railroad corporation shall cause a bell of at least thirty pounds weight, and a steam whistle placed and kept on each locomotive engine, and shall cause the same to be rung or whistled by the engineer or fireman, at a distance of at least eighty rods from the place where the railroad crosses or intersects any public highway, and shall be kept ringing or whistling until such highway is reached. Sec. 1 of an Act in relation to the equipment of locomotive engines with headlights (par. 187, ch. 114, Ill. Rev. Stat. 1949 [Jones Ill. Stats. Ann. 114.154]) provides that all common carriers by railroad shall be required to equip and maintain and use on all locomotive engines used by them in freight service, a headlight of sufficient candlepower, measured with the aid of a reflector, to throw a light in clear weather that will enable the operator to plainly discern an object the size of a man, upon the track, at a distance of 450 feet from the headlight, provided that the Act shall not apply to any locomotive engine running between sunup and sundown.
[4-6] In their complaint plaintiffs allege that they were in the exercise of due care for their safety at and about the time complained of. This allegation is a material averment which they must prove affirmatively in order to recover. Defendant contends that this proof was wholly lacking. There was evidence that for the greater part of a distance of more than 250 feet before reaching the crossing each of the plaintiffs looked to the south for a headlight or other indication of any train and listened for a bell or whistle. They saw no light and heard no sound. Since their view of the track to the south was unobstructed it is a legitimate inference in their favor that the approaching train bore no light and emitted no bell or whistle signal. Bilthuis also testified that although he looked, he saw no train or headlight from a train until he was 15 feet from the northbound track. Defendant states that Bilthuis and plaintiffs had a good view and that the numeral lights on the side of the engine were moving up toward the crossing in the stretch of right of way where the view was so unobstructed; that Bilthuis and plaintiffs could have seen the numeral lights on the side of the engine as the automobile moved eastward between Bell avenue and the crossing had they looked; and that the reason for these parties not seeing the headlight of the engine was because no one was looking ahead or to the side for it. The numeral light was small and dim and especially so in comparison with a standard locomotive headlight. Whether the parties could see the light would be a question of fact for the jury. We cannot say that all reasonable men would agree that such a light could be seen as the automobile proceeded from Bell avenue. By custom the approach of an engine in the nighttime is heralded by a reasonably strong headlight. In support of its position defendant cites Dee v. City of Peru, 343 Ill. 36; Briske v. Village of Burnham, 308 Ill. App. 531, affirmed 379 Ill. 193; Flynn v. Chicago City R. Co., 250 Ill. 460, and other cases. In the Dee case the court said (42):
"The law will not tolerate the absurdity of permitting one to testify that he looked and did not see the danger when the view was unobstructed, and where, if he had properly exercised his sight, he could have seen it."
In that case the driver of the car, George Schuets, with Joseph G. Dee, the decedent, as a passenger, drove the car off a bridge into the Illinois River at Peru through an opening occasioned by the bridge drawspan. It was undisputed that on approaching the bridge the gate, when closed, was fully visible for a distance of more than 100 feet. The car traveled at least 90 feet after the gate came into full view to the point where Schuets stated he saw it. He stated that he did not see the gate until he got within 20 feet of it and that he was going 30 to 35 miles an hour. The court said that Schuets and the decedent had an unobstructed view of the approach to the bridge and the obstruction across the roadway for a distance of at least 110 feet; that the car at a speed of 35 miles an hour could be stopped by application of the brakes in a distance of 50 to 55 feet; and that with the clear vision of the barrier across the bridge, a distance of 110 feet was ample to stop the car going at that rate of speed before the gate was reached. In the case at bar the plaintiffs looked and listened. The mishap in the Dee case occurred in the daytime. Furthermore, the gate was visible to the driver for a distance of 110 feet in ample time to stop the car. We have read the other cases cited by defendant and in our opinion they are inapplicable to the factual situation presented to us. We are satisfied that, viewing the evidence in its aspect most favorable to the plaintiffs, there was prima facie proof of the exercise of due care by plaintiffs.
We turn to the contention of plaintiffs that there was sufficient evidence to justify the jury in finding that the negligence of defendant was a proximate cause of the injuries. Defendant states that there was no evidence tending to show that it was guilty of any negligence, and that the sole proximate cause of plaintiffs' injuries was the conduct of Bilthuis in taking the automobile into the side of the engine. There was evidence that the engine approached the crossing without a headlight burning and without emitting the statutory signals. The violation of a statute is prima facie evidence of negligence. Wise v. Kuehne Mfg. Co., 322 Ill. App. 26; Carroll v. Krause, 295 Ill. App. 552. The defendant was bound to take notice that the public used the crossing and that any failure to give the statutory signals, or otherwise neglect to exercise care for their safety, would place travelers in great danger. Illinois Terminal R. Co. v. Mitchell, 214 Ill. 151; Indianapolis & St. L.R. Co. v. Stables, 62 Ill. 313. In Chicago B. & Q.R. Co. v. Triplett, 38 Ill. 482, the court, speaking of a daylight accident, said that "the Legislature have very wisely required that the whistle shall be continuously sounded, or the bell rung, for a distance of eighty rods before reaching the crossing," and that a traveler is "at least entitled to such warning of the approach of danger" as the statute requires so that he may have a chance to be "saved by the warning." See also Brown v. Illinois Terminal Co., 319 Ill. 326; Bernier v. Illinois Cent. R. Co., 296 Ill. 464; and Robertson v. New York Cent. R. Co., 321 Ill. App. 313. We conclude that there was evidence tending to show that the defendant was guilty of negligence.
[9-19] It was incumbent on plaintiffs to prove that the negligence of defendant was a proximate cause of their injuries. Proximate cause is defined as "any cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of and without which the result would not have occurred." 45 C.J. § 477, Negligence. To constitute proximate cause, a negligent act or omission need not be the sole cause. 45 C.J. § 485. If the negligent act or omission is an efficient cause, such act or omission is actionable as a proximate cause, even though other causes, not attributable to plaintiff, combined with such negligence to produce the ultimate result. Pullman Palace Car Co. v. Laack, 143 Ill. 242. Such concurrent causes may be the acts of a third person, either wrongful or innocent, or some accidental, inanimate or natural force or an act of God, or some combination thereof, but whatever their nature in this respect, they will not relieve a defendant from liability if his negligence is one of the efficient causes of the injury or at least an efficient cause without which the injury would not have occurred. Pullman Palace Car Co. v. Laack, supra; Village of Carterville v. Cook, 129 Ill. 152; City of Joliet v. Shufeldt, 144 Ill. 403; Armour v. Golkowska, 202 Ill. 144; 45 C.J. Negligence, §§ 486 and 499; Restatement of the Law of Torts, § 439. Hence, the wrongful author of any efficient cause "is liable as though it were the sole cause." Votrian v. Quick, 271 Ill. App. 259, 263. The negligence is actionable if it is "a direct contributing cause" (Storen v. City of Chicago, 373 Ill. 530, 533) or if it "contributes directly to producing" the harm. McClure v. Hoopeston Gas & Electric Co., 303 Ill. 89, 99. If the harm is a natural, probable and foreseeable consequence of the first act or omission, the original wrongdoer is liable, notwithstanding "other causes, conditions or agencies" intervened between his negligence and the ultimate result. 45 C.J. Negligence, § 489. "Natural and probable consequences are those which human foresight can anticipate." Rowell v. City of Wichita, 162 Kan. 294, 176 P.2d 590, 596. It may be said that proximate cause is simply "a cause from which a man of ordinary experience and sagacity could foresee that the result might probably ensue. 50 C.J. Proximate Cause, p. 840. McClure v. Hoopeston Gas & Electric Co., supra; Illinois Cent. R. Co. v. Siler, 229 Ill. 390, 394. In considering whether the negligence of defendant in operating its train without headlight, bell or whistle up to the point where the engine was when Bilthuis first saw it, it is to be recalled that the omission or nonoperation of signals, required or customarily given to indicate the approach of a train to the crossing, is equivalent to an assurance by the railroad that no train is in fact approaching and constitutes an invitation by the railroad to travelers on the highway to proceed toward and over the crossing. Langston v. Chicago & N.W. Ry. Co., 398 Ill. 248; Humbert v. Lowden, 385 Ill. 437; Applegate v. Chicago & N.W. Ry. Co., 334 Ill. App. 141; and Oswald v. Grand Trunk Western Ry. Co., 283 Ill. App. 86. This invitation to proceed was extended to Bilthuis and plaintiffs and accepted by them, not only on the first occasion they looked and listened, but on each occasion. It led them not only toward the crossing, but to the point where they were when the unlighted engine was first observed. Bilthuis was induced to approach the crossing at a speed of 15 miles an hour, which while 5 to 10 miles an hour less than he had generally traveled elsewhere that evening, did not contemplate the possibility that a train would suddenly loom up within a few feet of his course so as to make it imperative for the safety of himself and his passengers to stop instantly or practically so.
When Bilthuis first saw the engine the front of his car, under the evidence most favorable to plaintiffs, was only 15 feet from the track the train was on. At 15 miles an hour the automobile was moving at the rate of approximately 22 feet a second. In two-thirds of a second, therefore, he would reach the track, and the engine, traveling 40 to 50 miles an hour, was only 20 or 30 feet away, so that it would intersect the path of the automobile before the latter would reach the track. There was no possibility that the automobile could cross the track in safety ahead of the train. Plaintiffs and Bilthuis were thus placed in a position of peril. The peril consisted of two elements the location of the automobile and the fact that it was in propulsion at the rate of 22 feet a second. The momentum of the automobile, as well as its nearness to the track, were both an effect of defendant's invitation, or, in other words, of its negligence. Until that momentum could be arrested by the exercise of due care under the circumstances then and there existing, including the presence of the ice, every foot that the automobile traveled as a result of that momentum was a continuing effect of defendant's negligence. The evidence favorable to plaintiffs is that Bilthuis did exercise due care to arrest or divert that momentum, but was unable to do so, and that the momentum carried the automobile into the side of the engine. By a natural and continuous sequence that could have been foreseen and guarded against by defendant, the unsignaled approach of the unlighted train was either the sole cause of plaintiffs' injuries, or at least a cause that directly contributed to cause such consequences. In Miller v. Union Pac. R. Co., 290 U.S. 227, 78 L.Ed. 285, 54 S.Ct. 172, it appears that the train approached the crossing in daylight without signals. Although it was in plain sight of the driver for 2,000 feet he continued on over the crossing and the automobile was struck. In the suit of the guest the railroad contended that the negligence of the driver was an intervening efficient cause and the trial court directed a verdict on that theory. The Supreme Court, in reversing, said (235) that "the vice of the argument consists in the ...