Appeal by defendant from the Circuit Court of Kane county; the
Hon. CHARLES A. O'CONNOR, Judge, presiding. Heard in this court
at the February term, 1952. Reversed and remanded. Opinion filed
May 20, 1952. Rehearing denied July 22, 1952. Released for
publication July 22, 1952.
MR. PRESIDING JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 22, 1952
Frances V. Maltby and Pierre V. Maltby, wife and husband, in a trial before a jury in the circuit court of Kane county recovered verdicts against the appellant, Chicago Great Western Railway Company, in the sums of $25,000 and $15,000, respectively. Appropriate motions for directed verdicts, for judgments notwithstanding the verdicts, and for a new trial on behalf of defendant were denied and the trial court rendered judgments on the verdicts, and the defendant appeals.
The complaint as amended consisted of four counts. By counts one and three, Frances V. Maltby sought to recover damages for personal injuries which she received as a result of a collision between an automobile she was driving and defendant's locomotive and for money expended by her for medical treatment and for loss of earnings. By counts two and four, her husband, Pierre V. Maltby, sought to recover for damages he sustained by reason of his wife being injured, for his loss of consortium, for money which he had expended and would expend for her treatment, and for his automobile, which was demolished as a result of the collision. Counts one and two were based on negligence, and the same acts alleged to have been done negligently by the defendant in these counts, one and two, were alleged to have been done wilfully and wantonly in counts three and four. At the conclusion of plaintiffs' case, subparagraph (d) of all four counts and paragraph (g) of counts one and two were withdrawn on motion of the plaintiffs.
The substance of the allegations of appellees' complaint is that on January 26, 1949, a public highway running north and south crossed three sets of the appellant's railroad tracks which ran in an easterly and westerly direction near St. Charles, Illinois; that this public highway separated certain industrial buildings belonging to the St. Charles Manufacturing Company and the plant of the Moline Malleable Iron Company; that the buildings of the St. Charles Manufacturing Company were on the west side of the highway and north of the several tracks of the railroad company and partially or wholly obstructed the view to the west of the appellant's railroad track by a person driving in a southerly direction; that there were no signs, boards, flashers, or other appropriate warning devices on the north side of appellant's railroad crossing; that on the 26th day of January, 1949, and for a long time prior thereto, automobiles were parked in the right-of-way space owned by appellant between the two southerly sets of tracks and the north set of tracks of appellant and immediately adjacent to the west side of appellant's railroad crossing, and these automobiles, so parked, obstructed the view to the west of the two southerly sets of railroad tracks of any person who was approaching said railroad crossing from the north; that this crossing was frequently traveled, and appellant knew, or should have known, that this crossing was extra hazardous. It is then alleged that at one o'clock on the afternoon of January 26, 1949, appellee, Frances Maltby, was driving south in an automobile owned by her husband, Pierre, and was in the exercise of due care for her own safety and for the property of herself and others. It was then alleged that appellant (a) negligently failed to provide warning signs, boards, signals, flashers, lights, bells, semaphores, markers, or other warning devices at said crossing, having regard to the frequency of use, obstructions to view and the extra-hazardous nature of said crossing as previously alleged; (b) negligently permitted or neglected to prevent automobiles from parking on the right-of-way of appellant so as to obstruct the view to the west; (c) negligently failed to ring the bell or blow the whistle for at least eighty rods from the crossing and failed to continue blowing the whistle or ringing said bell until the crossing was reached in violation of paragraph 59 of chapter 114 of the Illinois Revised Statutes [Jones Ill. Stats. Ann. 114.095]; (d) negligently failed to construct and maintain the crossing and approaches thereto, in violation of paragraph 62 of chapter 114 of the Illinois Revised Statutes [Jones Ill. Stats. Ann. 114.098]; (e) negligently failed to erect and maintain a board on the north side of said crossing in violation of paragraph 58 of chapter 114 of the Illinois Revised Statutes [Jones Ill. Stats. Ann. 114.094]; (f) negligently operated the train at an excessive speed having due regard for the frequency of the use, obstructions to view, and the extra-hazardous nature of said crossing; and (g) negligently failed to operate the train with reasonable care and caution. The appellant answered admitting certain allegations of the complaint and denying others but specifically denying all charges of negligence and wilful and wanton conduct.
The evidence discloses that Frances V. Maltby was driving the automobile of her husband, Pierre V. Maltby, on January 26, 1949, in a southerly direction on a black-top road, referred to in the record as Foundry road, when it was struck by one of appellant's freight trains travelling on the main track and coming from the west at the grade railway crossing of Foundry road located just outside of and west of the city limits of St. Charles, Illinois, a city of 6,700 population. At this point and through the City of St. Charles the tracks run in an easterly and westerly direction. Dean street is a black-top road running in a northwesterly and southeasterly direction crossing the railway tracks at grade and at an angle, 300 feet west of the Foundry road crossing. Foundry road begins on the south side of the tracks at Dean street and proceeds north, crossing the three tracks of appellant at right angles. Where Foundry road crosses the main track of appellant is approximately 175 feet north of the point where Foundry road leaves Dean street. The southernmost track is the main track, the middle track is the passing track, and the track north of the passing track is the industrial or spur track. Immediately to the north of these tracks, Foundry road broadens out for a distance of about 250 feet into a combination road and parking space between the offices and plants of the St. Charles Manufacturing Company on the west side of Foundry road and the Moline Malleable Iron Company on the east side, after which it becomes a narrow, one-way dirt road, goes past two or three farm houses and terminates. It is used by officers and employees of the St. Charles plant driving to work and is also used by trucks delivering materials to both the St. Charles plant and the Moline Malleable plant, and employees of both plants who park their cars in front of either plant use this Foundry road crossing. The St. Charles Manufacturing Company is a two-story brick building. In January 1949, about 200 persons were employed by the St. Charles Manufacturing Company. There is no evidence as to the number of employees of the Moline Malleable Iron Company, but its employees use the highway crossing some 600 or 700 feet east of the Foundry road crossing and park their cars on the east side of the Moline Malleable Iron Company plant. There is no means of public transportation to either of the manufacturing plants, and those who are there employed go to work either by walking or by automobile. Prior to the accident, cars customarily parked in the parking space immediately to the east and in front of the plant of the St. Charles Company and for the entire north and south length of its buildings, and cars, likewise, customarily parked on the appellant's right-of-way located between the industrial track and the passing track, which right-of-way was about twenty-five feet in width and extended to the west along appellant's tracks for a distance of several hundred feet. On the day of the accident, the testimony varied as to the number of cars parked on this right-of-way, some of the witnesses stating that two cars were there parked, other witnesses fixed the number of cars at five. The weight of the evidence is that no freight cars were standing on the industrial track west of Foundry road on the day of the accident. Immediately west of the front of the Moline Malleable Iron Company building and immediately east of the building of the St. Charles Manufacturing Company from its south line, in Foundry road, cars are frequently parked and on the day of the accident a number of cars were parked there.
From the south side of the building wall of the St. Charles plant to the center line of the industrial track is 16.4 feet, from the center line of the industrial track to the center line of the passing track is 41.22 feet and from the center line of the passing track to the center line of the main track is 14.28 feet, which means that it is 71.9 feet from the south wall of the St. Charles plant building to the center line of the main track.
On the day of the accident, January 26, 1949, and prior thereto, Frances V. Maltby was employed as a laboratory technician in a Geneva hospital, and her husband was an accountant with the Moline Malleable Iron Company. Mr. Maltby had worked until noon on this day, and he drove to the hospital, picked up his wife, and he and his wife had lunch together at their home. After lunch she drove him back to the Moline plant in the family car. They used various streets until they came to Dean street, where they stopped and picked up another employee, Marion Doherty, of the Moline Malleable plant. When Mrs. Maltby came to Foundry road, she turned north on it and proceeded across appellant's three railroad tracks to the office door of the Moline Malleable plant. There she let her husband and Marion Doherty out of the car and she then turned the car around and started driving in a southerly direction back over appellant's railroad tracks. She knew the tracks were there, having just crossed them, and had also crossed them on other occasions. As she proceeded south, an 83-car freight train of appellant was approaching from the west going east on the main line track. This train was pulled by a three-unit, electromotive Diesel, fifteen feet high. There was a collision, and the Maltby car was knocked about fifty feet east of the crossing, and Mrs. Maltby was thrown from the car and sustained serious injuries.
Mrs. Maltby testified that she stopped her car in the center of Foundry road in front of the Malleable plant; that her husband and Marion Doherty got out and closed the door of the car and that she then started to turn around. As abstracted, she then said: "I don't know anything about coming between these two buildings in a southerly direction. I don't remember hearing any whistle. I don't remember anything. I don't know anything about it. I don't know whether I heard a bell on a train or not. I don't know how fast I was going as I approached the track. I have been over that crossing five or six times prior to January 26, 1949. I know that post at the crossing as you go toward the north, that is all I have seen. I have seen the so-called cross buck which is two boards crossed at an angle. I knew the tracks were there."
Frank L. Woods testified that he was the fireman on the left-hand side of the cab of the engine which struck the Maltby automobile; that he saw Mrs. Maltby as she came across the industrial track and watched her as she approached the crossing from the north; that when the front end of the Diesel was between 100 and 150 feet west of the crossing, he estimated her speed at twenty miles an hour, and that she continued toward the crossing at that rate of speed until her car passed out of view; that he shouted to the engineer that they were going to hit a car and for him to set the emergency brake. The emergency brake was set and remained set until the train came to a stop, which was after fifty-five of its cars had passed the Foundry road crossing. H.G. Brown was the engineer and on the right-hand side of the cab of the Diesel as it approached this crossing, and he testified that 80 rods west of the Dean street crossing was a whistling post; that as he got to the whistling post he started to sound the whistle of two long blasts then a short and a long which continued right up to the Foundry road crossing; that the bell had been ringing continuously from Stockton, where he had taken over the engine. In this respect, Woods, the fireman, corroborated the engineer. L.J. Kenney testified that he was head brakeman, riding in the rear unit of the three-unit Diesel, and that as he approached the Foundry road crossing he heard the whistle sounding and observed the Maltby car coming over the industrial track and continued to watch it until the collision. He stated that its speed was 20 miles per hour and that its speed remained constant from the time he saw it until the time of the collision. Woods, Brown and Kenney all testified that the train was going 40 miles per hour. The fireman testified that he looked at the speedometer when he was 2,000 feet from the crossing and it registered 40 miles an hour, and from that point to the crossing the train was drifting. Four employees or officers of the Moline plant who observed the train from their positions in the plant and as they looked out of a window or door as the train crossed the crossing after the collision estimated the speed of the train at fifty miles per hour.
Floyd Robshaw testified that he was foreman of a bridge gang and on the day in question was at a switch about one-half mile east of the Moline plant and heard this train whistle as it approached the Foundry road crossing. Claude Richman testified that he was at the crossing east of the Malleable plant and that he saw the train and heard it whistle when it was about 1,000 feet west of the Dean street crossing as it was coming around the curve west of that crossing. He further testified that when the engine went past him, after the collision, the bell was ringing.
Other witnesses testified on behalf of appellees that they heard no whistle as the train approached the crossing, and several witnesses stated that there was an interval of ten to fifteen seconds between the time the blowing of the whistle ceased and the noise made by the collision of the train and automobile.
At the trial, and over appellant's objections, the court admitted into evidence four letters which constituted an exchange of correspondence between R.A. MacNeille, president of St. Charles Manufacturing Company, and S.M. Golden, the vice-president of appellant. These letters were identified as Exhibits 7, 8, 9, and 10. Exhibit 10 was a letter dated December 17, 1948, and was from Golden to MacNeille. Exhibit 9 was a letter dated December 23, 1948, written by MacNeille to Golden in reply to Golden's letter of December 17th. Exhibit 8 was a letter dated January 8, 1949, from Golden to MacNeille, and Exhibit 7 was a letter dated January 11, 1949, from MacNeille to Golden in reply to Golden's letter of January 8th.
Mr. MacNeille was called as a witness on behalf of appellees and testified that he was president of the St. Charles Manufacturing Company and in 1945 he had some correspondence with S.M. Golden, now deceased, but who then was vice-president of appellant. He further testified that such correspondence had been destroyed and, after stating that he recalled the substance of that correspondence, he was asked: "Will you relate in general the substance of the correspondence in 1945." An objection was interposed by counsel for appellant and, in response to an inquiry from the court, counsel for appellees stated: "I am offering letters written by MacNeille only for the purpose of showing notice to the railroad company and correspondence from the railroad company generally." The court then stated: "It may be admitted and restricted to the question of giving notice to the railroad company as to the condition of the crossing at that time." Counsel for appellees then asked the witness (MacNeille): "Give us the substance of the correspondence," and the witness answered: "It was just a request on my ...