Appeal by defendant from the Circuit Court of Cook county; the
Hon. JOHN T. DEMPSEY, Judge, presiding. Heard in the third
division of this court for the first district at the October
term, 1953. Reversed and remanded. Opinion filed May 5, 1954.
Rehearing denied June 15, 1954. Released for publication June 15,
MR. JUSTICE KILEY DELIVERED THE OPINION OF THE COURT. Rehearing denied June 15, 1954.
This is a personal injury action arising from a collision between plaintiff's automobile, which had stalled on railroad tracks, and the defendant Railway's locomotive. The jury found the engineer and fireman not guilty, the Railway guilty and assessed damages at $100,000. Judgment was entered accordingly. The Railway has appealed from the judgment against it, and plaintiff has cross-appealed from the judgment in favor of the engineer and fireman.
The accident happened in Dyer, Indiana in the intersection of the Railway's east-west tracks and Hart Street at about 6:45 a.m. on September 16, 1949. Plaintiff was driving north on Hart Street, Dyer's main thoroughfare. The tracks were straight west for about 900 feet and then curved to the northwest. The train, consisting of a diesel engine and 41 tank cars, was going east on the southernmost tracks. Standard cross-buck railroad signs were maintained at the crossing. The sign south of the crossing was on the east side of Hart Street. Flasher signals were mounted on each sign and were set in operation by an electric current circuit about 1,360 feet west of Hart Street.
Plaintiff sued the three defendants, and in count I charged negligence and in count II wilful and wanton misconduct. At the close of plaintiff's case he dismissed count II. At the close of all the evidence plaintiff dismissed several charges of negligence, including that of negligence under the Indiana doctrine of last clear chance. It is conceded that the only charges of negligence affecting the Railway, apart from its liability for acts of the engineer and fireman, that went to the jury are: (a) that the Railway neglected to maintain operating flasher signals at the crossing on the day of the accident, and (b) that it permitted the crossing to become "worn, uneven and dangerous" with sufficient notice of the condition to enable it to repair the crossing.
The Railway contends as a matter of law that its alleged negligence was not the proximate cause of plaintiff's injuries. The question on the contention is whether there is any evidence tending to prove that the alleged non-operating flasher signal or uneven, rough crossing proximately caused the accident.
On this question we shall apply the familiar rule, and take the most favorable view for plaintiff: The weather on the morning of September 16, 1949 was clear and dry. Plaintiff was driving north on Hart Street and when a couple of blocks south of the tracks could see about 1,000 feet to the west on the tracks. He looked and observed no train approaching. As he came to the crossing he slowed down to about "8 or 9" miles an hour, looked west and east, saw no train approaching, observed the warning flicker lights were not operating and he drove into the intersection. Plaintiff knew of these flasher signals and that in operation they signified the approach of a train.
The planks between the southernmost tracks were loose and the rails were a few inches above the planks. This condition had prevailed for about four years. Plaintiff knew it was a "very bumpy crossing." As plaintiff's automobile met these planks, there was "shock," the "engine died" and the automobile came to rest with the rear wheels on the north track of the southernmost tracks.
Plaintiff looked west and saw defendant's eastbound train about 900 feet away coming on the tracks where his automobile had stalled. He looked east and saw no train coming on the westbound tracks. He tried to start his automobile; the ignition failed. He looked west again, saw the train about 700 feet away. He waved his hand at it and an answering wave came from the engine cab and the train appeared to begin slowing down. He looked east, saw no train, tried the starter again; it failed. He looked west a third time, the train was about 300 feet away, appeared to be slowing down and plaintiff tried the starter without success a third time. He looked west again, saw the train about 30 feet away, started to get out of the automobile and remembered no more until he regained consciousness at the hospital.
The train was being operated by the fireman, who had changed places with the engineer, at the right side of the engine cab. The engineer was at the left window. Also in the cab were three brakemen. There was nothing to obstruct the view to the east, after the tracks straightened out from the northwest curve about 900 feet west of Hart Street. After leaving the curve the speed of the train was increased as it approached the Hart Street crossing. When the collision occurred the train was going about 20-25 miles per hour. The engineer first saw plaintiff's automobile on the north rail of the eastbound tracks when the train was about 150 feet from the crossing. He "hollered" to the fireman who applied the emergency brakes when about 70 feet from the crossing. The left front part of the diesel struck the left rear of the automobile. After the accident the train came to a stop with the diesel and seven cars east of the crossing. The diesel was 70 feet long, each car was 40 feet long. The train, at about 15 miles per hour, could be stopped in an emergency in about 300 feet.
Defendant contends that on the foregoing facts the non-operation of the flasher signals was not the proximate cause of the accident because when plaintiff drove into the crossing he had already seen that no train was coming, and consequently, had relied on his own observation, not on the signals.
The jury found specially that the plaintiff did not drive his automobile onto the crossing when the train was so close as to "constitute an imminent danger." When he drove onto the crossing, no train was in his view. When his automobile stalled, he saw the train about 900 feet away. There was ample time for him to drive across the tracks had not the automobile stalled. The failure of the flasher lights was not the proximate cause of the accident. Wabash R. Co. v. McNown, 53 Ind. App. 116; 99 N.E. 126; Oleskiewicz v. Boston & Maine Railroad, 328 Mass. 180, 102 N.E.2d 417. This conclusion is not inconsistent with the holdings in Pearson v. Baltimore & Ohio R. Co., 200 F.2d 569; Pennsylvania R. Co. v. Boyd, 98 Ind. App. 439, 185 N.E. 160; Chicago & E.I. Ry. Co. v. Latta, 91 Ind. App. 102, 166 N.E. 297, that a plaintiff has the right to presume that if a train were approaching, the signals would be functioning. Even under the presumption, there was ample time to cross.
We shall assume, but not decide, that the condition of the crossing caused the automobile engine to die. Was the alleged negligence of the Railway in maintaining the crossing as it was the proximate cause of the accident? No cases cited by the parties are of particular help on this question. Here again plaintiff, after his car stalled, saw the train approaching when it was 900 feet away. We think reasonable men must agree that what transpired from the stalling of the car to the collision was not a natural, unbroken sequence of events which the uneven crossing set in motion.
We conclude, therefore, as a matter of law there was no evidence tending to prove that the failure of the flasher signals or the condition of the crossing was the proximate cause of the accident. Jones v. Cary, 219 ...