Appeal from the Circuit Court of Cook county; the Hon. JOSEPH
A. TROY, Judge, presiding. Judgment reversed and cause remanded
for a new trial.
JUDGE BURKE DELIVERED THE OPINION OF THE COURT.
Charles Petty sued the Illinois Central Railroad Company to recover damages for injuries suffered when the automobile in which he was being driven collided with defendant's suburban train at about 10:55 P.M. on Saturday, October 13, 1951. The court entered a judgment for $75,000 on a verdict returned by a jury. Motions by the defendant for a directed verdict, for judgment notwithstanding the verdict and for a new trial were denied. Defendant appeals.
The impact occurred at the intersection of the tracks of defendant's Blue Island suburban branch with Ashland Avenue, a block south of Chicago. This is a single track line extending in a southwesterly direction from Kensington, a station on the south side of Chicago, to Blue Island. The branch is 4.42 miles long. From Blue Island station, the southwest terminal, to Burr Oak, the first station to the northeast, it is 0.55 of a mile; from Burr Oak to Ashland Avenue it is 0.49 of a mile; and from Ashland Avenue to Kensington it is 3.38 miles. The single track crosses Ashland Avenue running southwest to northeast at an angle. Ashland Avenue is a heavily traveled north and south highway, paved with concrete. It is 40 feet wide from curb to curb and carries two northbound and two southbound traffic lanes. About 200 feet north of defendant's right of way a line of the Rock Island lines crosses Ashland Avenue in an easterly and westerly direction. The posted speed limit on Ashland Avenue in the vicinity of the crossing is 45 miles an hour. Trains run in both directions on defendant's track. The trains crossing Ashland Avenue are classified as northbound and southbound. There are 32 southbound trains and 29 northbound trains each weekday, some labeled "express" and some "local express." In addition to the scheduled trains, extra or nonscheduled trains operate on the track and cross Ashland Avenue. These are not passenger trains. The man in the interlocking tower at West Pullman, one mile east of Ashland Avenue, recorded that on the day of the occurrence 34 southbound trains and 34 northbound trains moved over this track.
North of the tracks and west of the highway there is a one story building, used at the time as a tavern, and north of that a two story building used as a residence. The south side of the tavern building is 35 feet from the tracks. A surveyor testified for plaintiff that from "the front of the tavern to Ashland" measures "about 21 1/2 feet." A plat admitted by agreement shows a distance of 27 feet from the front wall of the tavern to the western edge of the Ashland Avenue roadway. The gate standard in the northwest quadrant is 31 feet from the north rail and 4 1/2 feet from the west edge of the Ashland Avenue roadway. South of the track and east of Ashland Avenue is located the suburban station for Ashland Avenue. It consists of a ground level platform about 30 feet long, followed by a stairway leading to an elevated platform 209 feet long, on which platform a wooden shelter is provided for passengers. The west end of the ground level platform is 11 feet from the east edge of Ashland Avenue. The platform is 8 feet wide and runs parallel to the track on the south side thereof. South of the platform and east of Ashland Avenue there is located a trailer camp consisting of several houses surrounded by trailers.
The crossing is protected by automatic flashing signals in combination with short-arm gates. In addition there are crossbuck signs to indicate the presence of a track, and a standard highway sign located 410.2 feet north of the intersection, west of the highway, as a preliminary warning to southbound vehicular traffic. Back to back flasher lights are mounted on gate standards located in the northwest and southeast quadrants of the intersection. These lights are 7 1/2 to 8 feet high. The gate arm on the northwest corner has three red lights affixed to the top of the arm. The one at the end of the arm is steady and the other two are flickering lights. This arm is mounted on a gate standard at the northwest corner, and when lowered extends across the two southbound lanes of Ashland Avenue approximately parallel with the track, on the north side thereof. A similar arm is mounted on the southeast standard and when lowered, extends across the two northbound lanes. The crossing bell is located at the top of the standard in the southeast quadrant.
The crossing protection complies with the orders of the Illinois Commerce Commission. It is operated on a closed circuit principle. The rails are divided into sections called blocks by the placing of insulated joints at various locations. These sections of rails are energized by an alternating electric current, and at one end of the rail section or block a relay is attached by means of a cable. On the other end of the block there is a source of energy which is fed into and through one rail to the relay end, through the relay, back through the other rail, connecting to the other end of the source, which makes a closed circuit. As long as there is no broken rail, no broken wire or train present on this track, the relay is in an energized position. In other words, it is held up against the force of gravity. When a train enters this section, the wheels of this train act as a short circuit from one rail to the other rail. It is easier for the current in the rail to come from the source through one wheel into the axle, into the other wheel, back into the rail and back again, than it is for it to go up and go through the relay. Consequently, when a train enters this section, the relay immediately drops because the energy is failing to reach it and gravity pulls it down.
A train coming from Blue Island enters one of these block sections at the starter point, which is 2024.1 feet west of Ashland Avenue, and the presence of this train on the track shunts out the energy from the relay and the relay drops. It requires about three quarters of a second for that relay to drop. The dropping of the first relay, in turn, causes another one to drop and that, in turn, causes the light on the flashers to start working and the bell to start ringing. A third relay works the gates. The dropping of the second relay causes the energy to be taken from the third relay. The third relay is a time-delay relay. When the energy is taken, it takes approximately 3 to 4 seconds for it to release. After it releases and drops, the gates start down. While the gates are lowering, the bells ring constantly, the lights flash on the two masts on each side of the tracks, and the lights on the gate arm burn. As the train approaches the crossing, the gates remain down and the lights on the two masts and on the two gate arms continue to burn or flash until the rear end of the train clears another section, which, at Ashland Avenue, is 5 or 6 feet east of the east edge of Ashland Avenue. As soon as the rear of the train clears that point, the gates start rising. During the lifting period the lights continue to flash and burn on the gate arms and the flashers until the gates have gotten in the clear. Then the lights and flashers go out and the gates are again in an upright position. There are two sources of energy of this installation. One source is commercial electricity. In the event that the commercial electricity goes off there is a relay that immediately drops and cuts in a set of batteries which supply energy for approximately three days in case the commercial power should not come back. The trippers at the start of the block are set so that the fastest train that uses the crossing gives a 25-second warning minimum time to pedestrians and highway traffic. At this crossing, for trains moving northeast, the tripper more than complies with the 25-second minimum. The tripper is 2004.1 feet from the west edge of the Ashland Avenue roadway.
On the night of the occurrence plaintiff, who was 25 years of age, and Arthur Luckett, who at the time of the trial was in the armed forces, drove in a 1940 Dodge car owned by plaintiff's father to a theater at 47th and South Park Avenue, Chicago, and attended a show. Thereafter they went to a gasoline station where plaintiff purchased gasoline. They were on their way to Robbins, a village west of Blue Island. Plaintiff asked Luckett to drive when they were at the gasoline station because he was tired, and Luckett did so. Plaintiff sat in the front seat with Luckett. After plaintiff bought the gasoline they started south. They got on Ashland Avenue and in approaching the intersection of the defendant's tracks they were traveling in the lane farthest west. They were having a general conversation and plaintiff was not watching Luckett intently. He looked at Luckett from time to time to talk to him.
There is a conflict in the testimony as to approximately what happened. There was a collision. The front end of a northeast bound two-car train approaching Ashland Avenue and the front right side of the car driven by Luckett came together, the point of contact being placed by plaintiff's witness Cent at the center of the inner southbound lane, and by plaintiff's witness Land at a point about the center of the highway. The defendant's witnesses Quiett and Wilson placed the point of impact 10 feet east of the center line of Ashland Avenue, and in this they are corroborated by photographs and defendant's witnesses Pruitt and Sled, both of whom testified the automobile passed around the east end of the lowered gate in the northwest quadrant. The front right end of the car wedged under the front center of the train, and the train pushed or dragged the car about to the end of the Ashland Avenue station. The impact and skid marks were visible and were identified. The conductor of the train got off the first car and, seeing the automobile on the front of the train, called the power supervisor and went to the tavern to call the police and the ambulance, both arriving in a few minutes. Plaintiff was still in the car but Luckett was outside walking around. The men in the ambulance removed plaintiff from the car and took him to St. Francis Hospital in Blue Island. One of the policemen took Luckett to the same hospital in the squad car. The train was then disengaged from the automobile and, the brakes and angle cock of the lead car being damaged, the train was moved back to Blue Island.
Three occurrence witnesses testified for the plaintiff. Adam Cent said that after leaving his home in the trailer camp at about 10:45 P.M., and while standing about 35 feet south of the flashing light signal, he saw an eastbound train about 300 feet away approaching from the west and plaintiff's car coming from the north. He said that the gates did not come down, the bells did not ring and the lights did not flash; that the "headlight on the train seemed to be mighty dim and the lights in the car were not too bright"; that the front end of the train and the right side of the car came together; and that the contact was on the west side of the street, about the middle of the inner southbound lane. He testified further that within an hour men from the railroad came out and worked on the crossing protection "but the gates kept acting up there." He said that about 5 or 10 minutes after the accident two men got hold of the gate and pulled it down by hand; that up to that time the flasher lights had not come on; and that when the men pulled the gate down the lights did go on and the bells started ringing. Over defendant's objection the witness testified that on the Sunday before the accident he saw the gates going up and down while a train was traversing the crossing; that they were "flopping around," "just as if there was a ghost or something actuating them or wind, and there was no wind around."
Allen Land, called by plaintiff, testified that he was driving south on Ashland at a speed of 45 miles an hour; that plaintiff's car was about 150 feet ahead of him, going about 30 or 35 miles an hour; that as plaintiff's car got to the crossing "the gates started down and the train was there"; that the gates "just started, they just had started to come down when the train was there"; that just before the impact plaintiff's car swerved in a southeast direction and its tail lights lit up, indicating that the brakes had been applied; that the automobile was right on the track when the gates started to come down; and that the flasher lights were not flashing and the bell was not ringing. He testified further that the "lights did not go on when the gates started down and the flasher lights did not light up. It was total darkness." The witness drew a line marked "H" on a picture containing a panoramic view of the area to indicate the point to which he saw the gate drop, and said, "I did not see the gate go back or go down further." He said that the train "was going something like 40 to 45 miles per hour."
The plaintiff, in his own behalf, testified that on the night of the occurrence he was in his father's automobile with his friend Arthur Luckett. They were on their way home. At a gasoline station plaintiff asked Luckett to take over the driving because he, plaintiff, was tired and wanted Luckett to drive as an accommodation. Plaintiff sat beside Luckett. In approaching the Ashland Avenue intersection with defendant's tracks the car was moving south in the outer or westerly lane at a speed of 30 to 35 miles an hour. About 100 feet from the crossing plaintiff noticed that the crossing gates were up and that the lights on them were not lit. The car continued toward the crossing at the same speed. Plaintiff did not see any lights flashing and did not hear any bells ringing as the car approached the intersection. When the car was "eight to eleven feet from the nearest north track" plaintiff saw the gate on the southeast side of the highway "start to wave." The northwest gate remained quiet in an upright position. At that instant Luckett swerved easterly and the collision occurred.
Harry Pruitt, the engineer of the suburban train, called by defendant, testified that the train left Blue Island at 10:50 P.M.; that the first stop was Burr Oak, a regular stop; that the next station is Ashland Avenue, which is a flag stop; that between Burr Oak and Ashland Avenue the train went at a top speed of about 30 miles an hour until it got to within 200 feet of Ashland Avenue, "where I slowed down to approximately 25 miles an hour just in case we happened to have passengers who want to get on at Ashland Avenue. This gave me plenty of time to stop at the station if need be." Witness testified further that from Wood Street, the first crossing west of Ashland Avenue, the latter crossing can be seen very plainly, especially at night; that at Wood Street is located the tripper which operates the gates at Ashland Avenue; and that as the train crossed Wood Street, the Ashland Avenue gates ahead of the train went down and the red lights on the post and on the gates were flashing back and forth in a normal manner, and the crossing bell was ringing. Going into Ashland Avenue he said he was standing up ringing the foot bell; that he saw no traffic approaching on Ashland Avenue from either direction; that when he got to within 25 feet of the concrete pavement there was a car in the east lane coming south, so he put the brakes in emergency immediately; that "he was about the same distance north of me, north of the impact, as I was west. He was traveling south, really southwest, because he had kinked the car to go around the gates. I observed the car was turning toward me and I struck him then. His motor came in contact with the left front corner of my cars." Pasquale Esposito, the flagman on the train, testified that he was sitting near the front of the second car; that as the train reached the pavement of Ashland Avenue he observed that the gates on the south side of the train were down; that he observed all the lights were lit; that all four lights were working on the cross arm; that the flashers were working; that he heard the air released and "figured we were coming to a stop and right after that I heard the crash." He testified that on moving across Ashland Avenue, as the train began its trip back to Blue Island, the lights lit, the gates went down and the flashers flashed. He said that the Ashland Avenue protection also functioned normally on the return trip from Blue Island to Kensington, just as it had on the two round trips made earlier in the evening.
Grace Mager, a witness for defendant, lives about 90 feet south of the tracks and about a half block east of Ashland Avenue. She testified that she was watching television in her home. As the train approached the crossing she heard the bells ringing. She did not say whether any lights were flashing because she was watching her television set. The first thing that attracted her attention was the sound of the crash. She "jumped up, ran out of the house toward the train tracks" in time to see a train pushing a car down the track. When she got outside she also saw that the gates were down, the flasher lights were flashing and the lights on the gate were lit. She also heard the bell ringing. She stayed there until the train crossed Ashland Avenue on the way back to Blue Island. When the train went back over the intersection the lights started flashing again and the gates went down. She did not hear a bell at that time. She watched the train until it got over Ashland Avenue and observed that the gates went up.
Charlotte Kazmierczak lives in the southeast quadrant of the intersection about 250 feet from defendant's right of way. She testified that she was sitting in her living room watching television. She heard a crash. She "jumped up as fast as I could, ran to the southwest window of my kitchen. . . . I saw a train dragging a car and saw a lot of sparks." She saw the gates were down and the flasher lights and the lights on the gate arm were lit. After 15 or 20 minutes following the accident she saw the train move back toward Blue Island and as it did so, the gates were working. Her daughter Charlene, nine years old at the time, said that when she and her mother heard the crash they both ran outside. She looked at ...