Appeal by defendant from the Superior Court of Cook county;
the Hon. HAROLD G. WARD, Judge, presiding. Heard in the third
division of this court for the first district at the October
term, 1951. Judgment affirmed. Opinion filed June 13, 1951.
Rehearing denied July 16, 1951. Released for publication July 30,
MR. JUSTICE KILEY DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 16, 1951
This is a personal injury action in which plaintiff had verdict and judgment for $185,000. Defendant has appealed.
On January 16, 1948, about 11 P.M., plaintiff, then twenty-four years old, was driving an automobile east on Third Street in Gilman, Illinois. His wife was riding with him. The automobile was struck by defendant's north-bound diesel-motored passenger train, the "City of New Orleans." Plaintiff's right leg was torn off and subsequently his left leg was amputated. He suffered other injuries. His wife was also injured but she is not a party to the suit.
Gilman had at the time a population of 1600. Third Street was a main east-west street, though not a state highway. It was 20 feet wide and was paved with brick except for the slightly upward approach to the tracks, from the west, which was paved with asphalt. After crossing the tracks, Third Street led to Central Street, the principal north and south street. Central Street led to the town proper situated south of Third Street crossing. There were five sets of tracks on the Third Street crossing. The westernmost was a switch track; the second, a mainline which curved southwest, south of the crossing; the third, the southbound main; next, the northbound main; and, finally, another switch track. In addition there were cross-over tracks between the second and third sets of tracks. Several tracks led to the west from the westernmost track. The first one led off 106 feet south, and the next one, 207 feet south, of Third Street. There was a grain elevator 343 feet north of Third Street, adjacent the westernmost track. The northbound and southbound main tracks were straight for two miles south of Third Street.
There was a railroad yard at Sixth Street, 1500 feet north, and the Gilman railroad station was about 1000 feet south, of Third Street. Immediately south of the station was the T.P. & W. Railroad right-of-way and, immediately south of that, a grade crossing. The roundhouse yards began about 200 feet southwest of the Third Street crossing. The westernmost track connected with the T.P. & W. tracks southwest of the crossing. The T.P. & W. tracks ran almost at a right angle with the Illinois Central right-of-way.
There were single-armed gates on both sides of the Third Street crossing. The west gates were 12 feet west of the westernmost track and were located on the south side of Third Street. The gates were operated only between 7:45 A.M. and 3:45 P.M. under an order of the Illinois Commerce Commission. They were not in operation at the time of the accident. When not in operation the gates were locked in a raised position. On the east and west sides of the crossing were signs stating "GATES NOT WORKING". Defendant's practice was to cover these signs with metal shields during the hours that the gates were in operation. The shields were removed for the other hours. They were put on and taken off by defendant's tower man.
There was no artificial lighting and no flasher light warning device on the crossing itself. The nearest lights were 58 feet west, and 190 feet east, of the crossing. There was no bell on the west side of the crossing. There was an automatic bell 15 feet east of the easternmost track and just south of Third Street. It was operated by controls in the tracks. The control on the northbound main was 3639 feet south of Third Street. The control was designed so that the bell would ring continuously from the time the first locomotive wheel passed over the control until the last car had passed Third Street.
The verdict implies that the jury found plaintiff was in the exercise of due care and defendant was guilty of negligence proximately causing plaintiff's injury. The complaint charged general negligence in operation of the train and in maintenance of the crossing. It also charged that defendant was guilty of one or more of the following specific acts of negligence: failure to have gates in operation as the train approached and traversed the crossing; failure to have a watchman on duty; placing boxcars so as to obstruct the view of those travelling eastward over the crossing; failure to have bells, lights or other warning devices in operation; and operating the train at a dangerous and excessive rate of speed.
Defendant contends that the court should have directed verdict and entered judgment for defendant because plaintiff did not use due care, and defendant was not negligent, as a matter of law. It contends that, in any event, the judgment must be reversed and a new trial ordered because of error in the admission of testimony and in giving instructions; because of improper and prejudicial argument, resulting in a grossly excessive verdict; and because the verdict is against the manifest weight of the evidence.
We take the evidence in plaintiff's favor as true and draw the reasonable inferences most strongly in his favor, in determining whether there is any evidence tending to prove the exercise of due care. We do not consider unfavorable testimony developed by defendant, either in cross-examining plaintiff's witnesses or in defendant's case. Undisputed facts and indisputable physical facts are necessarily considered in order to understand the context of the accident.
During World War II plaintiff was a driving instructor in the Marine Corps. For some time prior to the accident he had been employed as a mechanic in the Chevrolet garage in Gilman. This garage was located on Central Street and two blocks south of Third Street. During this period he lived at a hotel a half block east of Central Street and three blocks south of Third Street. On the night of the accident plaintiff had driven from his home in Crescent City to Gilman, a distance of seven miles, for the purpose of visiting his mother who lived west and north of the Third Street crossing. He was driving a 1936 model Chevrolet sedan purchased in October 1947. Upon leaving his mother's home, shortly before 11 P.M., he turned east onto Third Street and drove toward the railroad crossing at about 15 miles an hour. He had never before driven over the crossing at night. He did not know there was no watchman on duty or that the gates were not in operation. He had seen the gates in operation in the daytime. He did not see the "GATES NOT WORKING" sign at the right of the pavement as he approached the crossing.
Defendant argues that plaintiff's testimony that he was unfamiliar with the Third Street crossing is inherently improbable and should be disregarded under the holdings in Kelly v. Jones, 290 Ill. 375; and Briney v. Illinois Cent. R.R. Co., 330 Ill. App. 250. It is clear from the first case cited that the reason for disbelief must arise from the testimony of the witness whose testimony is questioned. In the Briney case we said the inherent improbability should appear without reference to defense testimony. We see no inherent improbability in the testimony favorable to the plaintiff on this question. The same is true of the testimony, hereinafter considered, of the presence of boxcars on the westernmost track and south of Third Street. The testimony by and for plaintiff with reference to his not seeing the sign, considered alone, is not inherently improbable.
The defendant contends that plaintiff, as a matter of law, is chargeable with having seen the "GATES NOT WORKING" sign. The sign was located about two feet south of the right-hand side of the street as plaintiff approached the crossing. It was 12 feet west of the gates and 24 feet west of the westernmost track. The only artificial light in the vicinity, other than plaintiff's headlights, was the suspended street light about 35 feet west of the sign. The night was dark and misty. The sign was not illuminated in any way and had no reflector buttons. There was testimony that the sign was "dirty, sooty, and peeling". The sign measured three feet by four feet and was attached, a few feet from the ground, to a darkened post. The lettering on the sign was black. ...