Appeal by defendant from the Circuit Court of Sangamon county;
the Hon. DeWITT S. CROW, Judge, presiding. Heard in this court at
the October term, 1950. Reversed and remanded. Opinion filed
November 2, 1950. Petition for rehearing dismissed January 3,
1951. Released for publication January 3, 1951.
MR. PRESIDING JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT.
This is an appeal by the defendant, Wabash Railroad Company, from a judgment of the circuit court of Sangamon county in favor of the plaintiff, Albert T. Hughes, administrator of the estate of John D. Copeland, deceased, in the amount of $12,000, in a suit for damages for the death of John D. Copeland from injuries sustained when the automobile which he was driving was struck by one of the defendant's trains.
The point most strenuously urged by the defendant for a reversal is that the evidence showed that the deceased was guilty of contributory negligence as a matter of law. Therefore it is most important that the facts be fully explored.
The deceased was driving in a southerly direction on Constant street in the Village of Dawson, Illinois, when he was struck by the defendant's westbound freight train at the crossing of Constant street and the defendant's railroad tracks at approximately 6:15 a.m. on September 3, 1947.
The evidence showed that the deceased had arisen in his customary manner; that he had slept fine during the night; that he had eaten his breakfast and was on his way to work at the time of the accident. He was in excellent health, his hearing was good and he was in good physical condition. His automobile had good tires and was in good working condition.
As deceased approached the railroad tracks his view to the left or east, the direction from which the train was approaching, was completely obstructed until he was within 15 to 16 feet of the north line of the main track, at which time, and for the first time, he then had a clear line of vision down the track to the east. From this must be deducted 11 feet to allow for the overhang of the engine and the distance from the driver's seat in the automobile to the front of the car, which gives a distance of five feet. The objects which obstructed his view were:
(1) The grain office with the grain bins and grain elevator in the background to the east;
(2) Two sheds located immediately north of the house track and a few feet east of Constant street;
(3) Six boxcars parked on the house track extending from a point about the east edge of Constant street for a distance of 275 feet in an easterly direction along the house track and extending beyond the grain elevator located immediately north of the house track. In addition there were four boxcars parked on the house track to the west of Constant street;
(4) The railroad station which completely obstructed the view except as to that portion of the main track east of Constant street to the station building;
(5) A semaphore signal pole in front of the station bay window and the main track.
One witness for the plaintiff testified that the boxcars were so close to each side of the street that one could not pass an oncoming car that there was not enough room for two Fords to go through. Another witness for plaintiff testified that the boxcars to the east were three or four feet over the road.
The evidence disclosed that when there were no boxcars on the house track to the east of Constant street, then the view to the east for cars driving south was open in back of the station and in front of the grain elevator.
There are three tracks at this crossing the main track, a passing track and a house track.
The boxcars had been placed on the house track during the night preceding the accident.
There were no eyewitnesses to the accident.
The train was proceeding westerly toward Constant street at the rate of 50 miles per hour, which is 73 feet per second. The engineer could have seen the Constant street crossing if he was glancing down, but he was looking up. He did not see the deceased prior to the accident. The first he knew of the accident was when he felt a thud, and when he later saw the automobile, it looked like it had been hit between the driver's seat and the rear wheel on the left side.
The evidence is in dispute as to whether or not the train crew rang the bell or blew the whistle. Three witnesses for plaintiff testified that the bell was not rung and the whistle was not sounded. The evidence showed that they were in a position to hear if the bell had been rung or the whistle sounded. For the defendant, the members of the train crew and two other witnesses testified that the bell and whistle were sounded.
R.B. Thomas, a witness for the plaintiff, testified that the first time that any view was available to the driver of an automobile would be when he had a travel distance of 40 feet from the main line, and assuming that the automobile was being driven 15 miles an hour and the train 50 miles per hour a person would then have 1.8 seconds until the collision would occur. There was no objection by defendant to this testimony.
Mr. Thomas testified that he was assistant chief engineer for the Illinois Commerce Commission; that he was familiar with the crossing in question, and that in 1939, he had participated in a survey of all of the Wabash crossings between Springfield and Decatur. He testified that the elements taken into consideration by the experts on the question of unusually dangerous and extra hazardous crossings are: vehicular traffic and the speed of the same; the character and volume of railroad traffic and the speed of the same; the railroad facilities present at the crossing that is the track arrangement, the intersecting driveways and roadways, if any, the obstructions to the view including the fixed objects that obstruct a view, also the movable objects which may or may not obstruct a view; the character of the highway and the width of the crossing. He was also asked a hypothetical question which will be discussed in detail later. Numerous witnesses testified that the deceased was a careful man; never used intoxicants; tended to his own business; was a good driver; never took any chances; had never been in an accident before; was active and quick in his motions; had good eye-sight, good hearing and good health. At the time of his death he was 55 years old and earned from $350 to $380 per month.
Defendant contends that plaintiff was guilty of contributory negligence as a matter of law and that the judgment should be reversed and judgment entered here in favor of the defendant without remanding the case for a new trial.
It is an undisputed principle of law that when there are controverted issues of fact presented by the evidence upon which reasonable men may disagree, that the court must submit the case to the jury, and the verdict of the jury will not be set ...