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Johnson v. Chicago & N.w. Ry. Co.

MARCH 2, 1956.

WILLIAM JOHNSON, ADMINISTRATOR OF ESTATE OF MARIAN JOHNSON, DECEASED, PLAINTIFF-APPELLEE,

v.

CHICAGO & NORTH WESTERN RAILWAY COMPANY, DEFENDANT-APPELLEE, AND OLIVER E. FRASER, ADMINISTRATOR OF ESTATE OF ETHEL E. MULLINS, DECEASED, DEFENDANT-APPELLANT. WILLIAM JOHNSON, ADMINISTRATOR OF ESTATE OF MARIAN JOHNSON, DECEASED, PLAINTIFF-APPELLANT,

v.

CHICAGO & NORTH WESTERN RAILWAY COMPANY, DEFENDANT-APPELLEE, AND OLIVER E. FRASER, ADMINISTRATOR OF ESTATE OF ETHEL E. MULLINS, DECEASED, DEFENDANT-APPELLANT.



Consolidated appeals from the Circuit Court of DeKalb county; the Hon. CASSIUS POUST, Judge, presiding. Judgments affirmed.

JUSTICE EOVALDI DELIVERED THE OPINION OF THE COURT.

Rehearing denied March 26, 1956.

This is a suit brought by the administrator of the estate of Marian Johnson, a grandchild, age 8, against the estate of her grandmother, Ethel Mullins, age 67, and the Chicago & North Western Railway Company. Both suffered fatal injuries when Mrs. Mullins on the 15th day of December, 1951, drove an automobile in which Marian was riding past an operating wig-wag signal onto the Sixth Street Railroad crossing in DeKalb, Illinois, and in front of a clearly visible oncoming freight train.

Trial in the circuit court of DeKalb County, Illinois, resulted in jury verdicts of not guilty as to the North Western and a verdict of $11,500 against the defendant, Oliver E. Fraser, administrator of the estate of the grandmother. Subsequent motions were overruled and judgment was entered in favor of the plaintiff and against the defendant, Oliver E. Fraser, administrator as aforesaid, in the said sum of $11,500, and judgment was entered in favor of the North Western, and against the plaintiff.

The defendant-appellant, Oliver E. Fraser, administrator, took this appeal from the judgment entered against him in Case No. 10863. The plaintiff, William Johnson, administrator as aforesaid, took an appeal from the judgment against him and in favor of the North Western, that case being No. 10874 in this court. After the cases were docketed in this court, an order was entered directing that they be consolidated in the court for the purposes of hearings and oral argument, that only one set of the briefs and abstracts be required and that all filings in the consolidated cases be filed under the original appeal, namely No. 10863.

The original complaint filed on December 13, 1952, consisted of five Counts, to wit: Count I, a negligence Count against the defendant railroad; Count II, a wilful and wanton Count against defendant Fraser, administrator, alleging plaintiff's intestate was a guest; Count III, a wilful and wanton Count against the defendant railroad; Count IV, a joint charge of negligence against the defendant railroad and wilful and wanton misconduct against defendant Fraser, administrator; Count V, a joint charge of wilful and wanton misconduct against both defendants. Answers were filed denying the allegations of the complaint.

On the date the case was called for trial, i.e., November 8, 1954, counsel for plaintiff upon motion was granted leave to file an amendment to said complaint consisting of two additional Counts, being Counts VI and VII. By Count VI it was alleged that plaintiff's intestate was a passenger and not a guest and that Ethel E. Mullins was guilty of negligence. By Count VII, it was alleged that plaintiff's intestate was a passenger and not a guest in the automobile of defendant's intestate and that both defendants, Ethel E. Mullins and the railroad, were guilty of joint negligence.

Upon the filing of said amendment to the complaint and the additional Counts VI and VII, defendant Fraser, administrator, asked and was granted leave to file a motion to strike Counts IV, VI and VII of said complaint on the grounds of surprise as to Counts VI and VII and that Count IV improperly joined a negligence charge against the railroad and a wilful and wanton charge against defendant Fraser, administrator, in a single Count, and as to Counts VI and VII, that it appeared from the face of the complaint that the plaintiff's intestate was, as a matter of law, a guest passenger in the automobile of defendant's intestate at the time of the occurrence in question and that under the Guest Act, no action by a guest against a driver could be brought except for the wilful and wanton misconduct of the driver, and that an allegation of negligence against the driver was insufficient. The motion to strike was denied. Whereupon, defendant Fraser, administrator, after leave granted, filed a motion to require plaintiff to make additional Counts VI and VII more specific, to allege facts upon which it was plain that plaintiff's intestate was a passenger and not a guest in the automobile of Ethel E. Mullins, deceased. The court granted said motion.

Plaintiff thereupon filed a second amendment to the complaint being additional paragraphs 3a to additional Counts VI and VII in the words and figures, as follows:

"That at said time and place the plaintiff's intestate being a child eight years of age as aforesaid was under the custody and control of said Ethel E. Mullins and subject to her directions, that she became a passenger in said automobile of Ethel E. Mullins at the direction of said Ethel E. Mullins and was at the time and place of the occurrence in question a passenger in said automobile without payment for the ride, at the direction of the said Ethel E. Mullins; that plaintiff's intestate at the time and place of the occurrence in question owed to the said Ethel E. Mullins a duty of obedience and submission and by reason of the premises aforesaid was not a voluntary guest passenger in said automobile."

Upon the filing of said amendment defendant Fraser, administrator, after leave granted, filed a motion to strike the second amendment to the complaint on the ground that it appeared from the face of the complaint that the plaintiff's intestate was, as a matter of law, a guest passenger in the automobile of defendant's intestate, Ethel E. Mullins, and that the allegations of the second amendment to the complaint were wholly insufficient in law and in fact to sustain the position that plaintiff's intestate was not a guest passenger in said automobile at the time and place of the occurrence in question. Said motion to strike the second amendment to the complaint was denied. Defendant Fraser, administrator, then obtained leave to file an answer to the amendment and second amendment to the complaint, and filed his answer denying the allegations of said amendments to the complaint. During the period of time that the amendments were made to the complaint, the court inquired of defense counsel:

"I don't hear any request for a continuance on the grounds of surprise, do I?"

and defense counsel answered:

"Mr. Gobel: Not on our part.

"Mr. Maynard: No."

At the trial, plaintiff withdrew the wilful and wanton Counts as to the defendant, Chicago & North Western Railway Company.

Defendant-appellant Fraser, administrator, contends that plaintiff's intestate was a guest in the automobile of Ethel E. Mullins, deceased, as a matter of law; that the trial court should have stricken the negligence Counts of the complaint against him as administrator; that the trial court should not have submitted the legal question of status of Marian Johnson, as passenger or guest, to the jury on undisputed evidence, as a matter of fact; that there was no sufficient evidence of wilful and wanton misconduct on the part of Ethel E. Mullins, deceased, to sustain a general verdict against her on the wilful and wanton Counts, and the court should have granted defendant Fraser's motion for judgment notwithstanding the verdict; that the trial court erroneously admitted incompetent testimony and gave erroneous instructions; and that the verdict is against the manifest weight of the evidence.

As to his appeal from the judgment in favor of defendant-appellee, the Chicago & North Western Railway Company, plaintiff-administrator contends that he was restricted as to cross-examination, and as to rebuttal evidence, and that the trial court erred in giving certain instructions on behalf of the railway company.

The collision occurred on a Saturday afternoon at the Sixth street crossing in the City of DeKalb. This crossing is located in the downtown business district of DeKalb. At the Sixth street crossing there are two east-west main line running tracks and three industrial tracks or switching tracks north of the running tracks. There is a wig-wag flasher located on the south side of the tracks on the east side of Sixth street and immediately south of the running tracks. On the north side the flasher is located north of the most northerly of the industrial tracks and at least sixty or sixty-five feet north of the running tracks. There were no parked or standing freight cars on the industrial tracks nor on the running tracks, nor any other obstructions to prevent or hinder vision to the west. Fifty feet north of the main line tracks vision was unobstructed for one mile to the west; at seventy-five feet for a distance of 1700 feet to the west; at 100 feet for a distance of 1520 feet to the west, and at 150 feet for a distance of 340 feet to the west.

The day in question was a cold day — zero or below. It was variously described as partly cloudy, overcast, bright, clear, but all the witnesses agree that there was clear vision and it was not snowing at the time. It had been snowing heavily, however, and the entire area was covered with snow. Sixth street and the crossing was covered with snow packed from traffic and was slippery. Appellant Fraser's intestate, Mrs. Mullins, with plaintiff's intestate, Marian Johnson, riding with her as a passenger in the front seat, was proceeding south on Sixth street enroute to Mrs. Mullins' home. Mrs. Mullins was in good health, and had driven her car a lot. There was no evidence of there ever having been any mechanical or other trouble with the car.

Mrs. Mullins was familiar with the crossing. She had lived in DeKalb for 5 or 6 years on the south side. The Johnsons lived northeast. They were about 10 blocks apart. Mrs. Mullins went back and forth between the two houses, and to do so, it was necessary to cross the tracks, and ...


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