Appeal by defendant from the Circuit Court of McLean county;
the Hon. HUBERT H. EDWARDS, Judge, presiding. Heard in this court
at the February term, 1954. Judgment affirmed. Opinion filed
April 13, 1954. Released for publication April 29, 1954.
MR. JUSTICE HIBBS DELIVERED THE OPINION OF THE COURT.
The plaintiffs-appellees, Lois L. Gibson, administratrix of the estate of Howard Gibson, Deceased, and Lois L. Gibson, individually, brought suit against the defendants, William F. Nenne and Gulf, Mobile & Ohio Railroad Company, to recover damages for the injuries to and resulting death of plaintiff's intestate and for funeral expenses paid by plaintiff, Lois L. Gibson, individually.
The jury found William F. Nenne, locomotive engineer, not guilty but returned a verdict in favor of the administratrix in the sum of $10,000 and in favor of Lois L. Gibson, individually, for $422.80 and judgments were duly entered on the verdicts. The railroad company, as appellant in this appeal, contends that the trial court erred in not directing a verdict for the defendant at the close of all the evidence and in refusing to enter a judgment notwithstanding the verdict. No motion for new trial was made.
The appellant says that there was not sufficient proof either on the question of its negligence or on the due care of the decedent to warrant submitting the cause to the jury. The issues here raised present a question of law as to whether, upon a full consideration of all the evidence and all reasonable inferences from it most favorable to the appellees, there is a total failure or lack of evidence to prove negligence on the part of the appellant railroad and due care of plaintiff's intestate. (Heideman v. Kelsey, 414 Ill. 453; Todd v. S.S. Kresge Co., 384 Ill. 524; Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300.)
The complaint alleged negligence on the part of the locomotive engineer, Nenne, in failing to give the statutory warning of the approach of the train by either ringing the bell or blowing a whistle and the operation of the train at an excessive rate of speed. In view of the fact that the engineer was found not guilty it is conceded in the briefs of both parties that the statutory warnings were given and the train was not operating at an excessive rate of speed. The complaint did charge a negligent failure on the part of the appellant to give other warnings of the approach of the train in addition to the statutory requirements.
The decedent, operating a truck in a westerly direction, loaded with limestone weighing 21,000 pounds, was struck and killed about eleven-thirty in the morning on January 22, 1952 at an intersection of a due east and west gravel road and the tracks of the appellant which ran in a straight northeasterly and southwesterly direction at an angle of twenty-five degrees east of north and twenty-five degrees west of south.
At the intersection there were three tracks, the west one or southbound main, the middle track or northbound main and the east track known as the business track. It was ten feet, two inches from the west rail of the business track to the east rail of the northbound main and eight and one-half feet from the west rail of the latter track to the east rail of the southbound main. The distance from the most easterly rail to the most westerly rail was about twenty-six feet. There were no warning signs at the crossing other than the customary crossarm signals. Decedent was struck by a passenger train traveling south on the southbound main or westerly track.
The plant of the Ocoya Stone Company, a limestone mill, was located at the southeast corner of the intersection, and a grain elevator was situated about eighteen hundred feet north of the crossing on the east side of the right-of-way. The accident occurred during the busy season of the limestone company when about 125 loads of limestone passed over the crossing each eight-hour day.
A northbound freight train about thirteen hundred feet in length stopped on the north main or middle track about one-half hour before the accident and conducted switching operations at the elevator and limestone mill up until five to fifteen minutes before the southbound passenger train passed it. While the operation at the mill was being conducted, one of the brakemen flagged the crossing in question.
There were five eyewitnesses who testified for the plaintiff, all within a hundred or less feet of the scene of the accident. None of them heard any bell and no whistle except just immediately before the collision. They stated that the rear end of the freight train was fifty to one hundred twenty-five feet north of the crossing, that the southbound passenger train powered by a diesel locomotive was running between seventy and eighty-five miles per hour. Four of the witnesses were operating trucks loaded with limestone. One had just passed over the tracks. One was approaching the business track. One was on the weighing scales about a hundred feet from the crossing, and the other was waiting just south of the scales to have his load weighed. The plaintiffs' evidence showed that the decedent, as he was crossing the tracks, was traveling about five miles per hour. Albert B. Anderson, one of the truckers, crossed the tracks immediately before the decedent. When he was in the middle of the northbound main his view was still obstructed by the freight train. It was not until he was in the middle of the southbound main that he could see the approaching passenger train then about a quarter of a mile away. At the time of the collision he was twenty feet west of the southbound main. He opened the door of his cab and looked behind and saw Gibson was coming across the tracks and stuck his arm out of the door and motioned a couple of times to stay back. He could see Gibson's head and face through the windshield. Gibson was looking to the north and then to the south and again back to the north and did not look ahead toward the witness.
The photographs in evidence show that if there had been no train or car standing on either the northbound main or the business track, a westbound traveler on the highway would have an unobstructed view to the north as he approached the appellant's tracks for over one-fourth of a mile.
The crew of the freight train knew that passenger train No. 11, the one involved in this case, was running twenty minutes late.
One of the questions here presented is whether there was sufficient evidence to warrant a jury in passing upon the question of negligence arising from a common-law duty. This cause does not fall in the class of cases where there is an unobstructed view nor where there has been a failure to comply with the statutory warning requirements or a failure of mechanical signals or to lower gates. Under the circumstances, if there was no extra-hazardous condition existing at the crossing there would be no duty upon the railroad to operate safety devices or provide a watchman. If there was any evidence tending to show that an extra-hazardous condition existed at the crossing it was for the jury to determine whether the railroad should have provided additional warning to travelers upon the highway. (Hughes v. Wabash Railroad Company, 342 Ill. App. 159; Maltby v. Chicago Great Western Ry. Co., 347 Ill. App. 441.)
This brings us to a consideration of whether a crossing not deemed ordinarily extra-hazardous, but becomes such temporarily by reason of the acts of the railroad, necessitated the giving of additional warning of approaching trains, so long as that condition continued. In Applegate v. Chicago & N.W. Ry. Co., 334 Ill. App. 141, it is said at p. 153: "In the instant case, it would appear that even if the crossing were not deemed ordinarily extra hazardous, exceptional circumstances were created when the `401' passed defendant's freight train at this ...