Appeal from the Circuit Court of Kankakee county; the Hon.
C.D. HENRY, Judge, presiding. Judgment affirmed.
JUSTICE EOVALDI DELIVERED THE OPINION OF THE COURT.
For a second time, this case comes to our Court. In the first appeal judgment in favor of plaintiff in the sum of $6,250 was set aside for the failure of the trial court to withdraw from the jury the wilful and wanton counts of the complaint (3 Ill. App.2d 209 (Abst.)). In the second trial the jury again returned a verdict in favor of plaintiff, this time in the sum of $3,250, upon which the court entered the judgment from which this appeal is taken.
Originally there were four counts in the complaint, but on the second trial the case went to the jury on Count II, the other counts having been dismissed by plaintiff.
Count II alleged in substance that the plaintiff was at the depot of defendant in Momence on June 13, 1951, for the purpose of unloading mail from defendant's train No. 14, due to arrive and stop from the south on the east track of defendant's railroad at approximately 5:50 a.m. (CST); that the plaintiff was lawfully on said premises and at all times mentioned in the complaint in the exercise of due care for his own safety; that at approximately 5:50 he crossed the double track of defendant on the crosswalk provided for that purpose from the west to the east for the purpose of unloading mail from defendant's train No. 14 due from the south on the east track at said time, and thereupon defendant's fast train No. 6 proceeding northerly at a great rate of speed struck an intended passenger of defendant, Alice B. Buntain, causing her body to immediately strike and injure him.
It was further alleged that defendant was negligent in one or more of the following:
(a) running its northbound passenger train, No. 6, on its easterly track through its depot in said city at a dangerous and unreasonable rate of speed, to-wit: 80 miles per hour.
(b) running its said train No. 6 at said dangerous and unreasonable rate of speed at approximately the same time that its passenger train, No. 14, also northbound on said easterly track, was due to stop at said depot.
(d) running its northbound passenger train, No. 6, on its easterly track through its depot in said city at a dangerous and unreasonable rate of speed, to-wit: 80 miles per hour, at approximately the same time its passenger train, to-wit: No. 14, also northbound on said easterly track, was due to stop at said depot without providing adequate warning to plaintiff and intended passengers of the approach of said fast train, to-wit: defendant's train No. 6.
Plaintiff alleged that by reason of such conduct, he was permanently injured and disabled and was damaged in the sum of $15,000. The defendant's answer denied all of the material allegations of the complaint.
At the close of plaintiff's case and again at the close of all the evidence, defendant's motion for directed verdict was denied. Subsequently, defendant's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, and plaintiff's motion for new trial were argued and overruled.
Defendant's theory is that plaintiff failed entirely to prove that immediately before and at the time of the injury he was in the exercise of due care for his safety; that he failed to prove that defendant was guilty of negligence which was the proximate cause of his injuries; that the court erred in denying defendant's motion for a directed verdict and for judgment notwithstanding the verdict; and that the jury was erroneously instructed at the request of the plaintiff.
On the 13th day of June, 1951, and for approximately a year and a half prior thereto, plaintiff was under contract with the Government to carry mail between the post office and the station of the defendant at Momence, Illinois, making some 6 or 7 trips a day to the station 7 days a week. On said June 13, plaintiff went to the station for the purpose of getting mail from train No. 14, a local northbound passenger train which was due to arrive at the depot at 5:51, Central Standard Time, 6:51 Daylight Savings Time. The railroad runs north and south through Momence. There are 2 tracks east of the depot, the east track being the northbound track and the west track being for southbound trains. In order for a person at the depot to board a northbound train or to receive mail from such train, it is necessary to cross both tracks on a board walk, which was directly in front of the depot. The railroad tracks which plaintiff crossed were set in a railroad bed averaging one and one-half feet in depth. The bed was about one foot deep on the east side and a railroad tie or log formed the east side of this roadbed. The east side of the railroad bed was 2 1/2 feet east of the east rail of the east track. Above the bed on the east side, there was an asphalt platform used for passengers and for unloading of mail.
Plaintiff testified that on the morning in question he arrived at the station at about 6:30 a.m. (DST); there were about 15 or 20 other people at the station who were waiting for train No. 14; that, among others, he saw Mrs. Alice Buntain; that a person in the station looking south had an unobstructed view to the south to the curve in the track, which was one-half mile south; as the train came around the curve he heard the whistle; it was about 6:50 a.m. (DST); No. 14, the train he was waiting for, was due at 6:51; when he saw the train and heard the whistle, the people on the west side of the track started across to the other side; everybody started across when the train was seen coming around the curve; he got his cart and started across with it; the reason plaintiff customarily crossed the tracks after the passengers had started across was to avoid hitting them with his heavy cart which had 2 iron wheels and which was about 10 feet long; they crossed on a board walk which was 16 feet wide; plaintiff would run because the cart was heavy and it was easier to push while running; Mrs. Buntain started across a little ahead of plaintiff; about three-fourths of the way across the board walk plaintiff passed her; he was running and she was walking slowly; he thought the train which he had seen approaching was No. 14; he got across the track 4 or 5 feet, gave his cart a shove and started to turn around and got about half way around and he was struck by Mrs. Buntain's body which knocked him against his cart which was east of him breaking his right leg, and causing him other injuries which are not set out in detail, as no contention is made by defendant as to the nature and extent of the injuries. At the time he was struck, plaintiff was completely across the railroad bed and 4 or 5 feet on to the asphalt platform.
Plaintiff further testified that he later learned that the approaching train was No. 6, the fast passenger train which did not stop at Momence and which was due to arrive at Momence at 5:06 (DST); that there was no warning or signal given that the train approaching was No. 6 rather than No. 14; that no mechanical signal was given; and that he knew that ...