Before MAJOR, LINDLEY and SWAIM, Circuit Judges.
The plaintiff was riding in the cab of a closed truck driven by his father when it was struck by a freight train. He sued the railroad company for the personal injuries which resulted. The negligence claimed was that the defendant railroad company failed to give plaintiff and his father adequate warning that a train was approaching the crossing, and that the train was being operated at an unreasonably excessive speed. The jury returned a general verdict for the plaintiff and awarded him damages of $10,000. On appeal the defendant claims that the lower court committed error in refusing to submit a special interrogatory to the jury, and that there was no substantial evidence to support the verdict.
At the time of the accident the plaintiff and his father were driving in a southerly direction on Main Street in Eureka, Illinois, a town of about 2,500 persons. That street is also Illinois state route 117, a heavily traveled highway. The defendant's tracks cross Main Street in the center of the business district of Eureka. Plaintiff and his father both testified that the street was slippery and that on the ground there was snow being blown about by gusty winds so that at times they could not see. Each of them further testified that as they approached the railroad crossing the red blinker warning lights were not flashing and that they heard no train whistle or bell. A short distance to the west of the crossing there is a large grain elevator and defendant's tracks so curve to the north and behind the elevator as to make it impossible for persons approaching the crossing from the north to see a train coming from the west until it is almost at the crossing. Another obstruction to the view of persons approaching the crossing from the north is a small elevator office building situated on the north side of the tracks between the elevator and the crossing. There was testimony that at the time of the accident a boxcar was standing on the switch track next to the elevator which further obstructed the view to the west. The plaintiff said that they approached the main track slowly and that he looked in the direction from which the train was actually coming without seeing it. Neither the plaintiff nor his father was ever aware of the train; after driving on the track, the next thing either of them could remember was waking up in the hospital.
Witnesses for the defendant, some of them disinterested, testified that the warning lights were flashing and that they heard the train's bell and whistle as it approached the crossing. One witness, a grain elevator operator for the Eureka Farmers Cooperative Association, testified that he was shoveling snow in front of the elevator office building and about four feet from the north switch track as the plaintiff and his father approached. He heard the whistle of the train and looked up and saw the train coming. When he saw that the plaintiff and his father did not seem to be aware of the approaching train, he began waving his arms and shouting to attract their attention and warn them that they were in danger. He said that the train was then between two and three blocks from the crossing. Most of the witnesses, including the engineer, agree that the train was traveling between 45 and 55 miles per hour.
The general verdict for the plaintiff makes it necessary for us to assume that the jury found all the issues of fact in plaintiff's favor, and under the substantial evidence rule we must accept the jury's finding since there was evidence to support it. Bedwell v. Grand Trunk Western Railroad Co., 7 Cir., 226 F.2d 150; Collins v. Neal, 7 Cir., 219 F.2d 238.
On appeal the defendant seems to make three arguments. It claims that the verdict was not supported by substantial evidence, that a special interrogatory it tendered should have been presented to the jury, and that the plaintiff was guilty of contributory negligence as a matter of law. We shall discuss these arguments in the above order.
As we have already said, the testimony of the plaintiff and his father is sufficient to support a finding that the warning lights were not flashing as they drove by them and that the train did not whistle or ring its bell. Illinois decisions are not entirely clear on whether or not merely proving that a warning device failed to operate while a train was approaching is sufficient to support a finding of negligence on the part of the railroad. Langston v. Chicago & North Western Railway Co., 398 Ill. 248, 75 N.E.2d 363, holds that it is. In that case the plaintiffs' injuries occurred when the automobile in which they were riding ran into the side of a train which was crossing the highway. The complaint alleged and the jury found that the accident was caused by the failure of the railroad company to maintain proper warning lights at the crossing.The Court said, 398 Ill. at page 255, 75 N.E.2d at page 366:
"It appearing in this case that there are facts and circumstances in evidence that the appellant undertook to furnish a certain method of warning the public when a train was approaching or on the crossing, and the driver of the car being familiar with this method of warning, it cannot be said, under the facts, that as a matter of law there was no negligence upon the part of the railroad company."
It is true that in the Langston case the warning devices at the railroad crossing were connected to a traffic light at a highway intersection just west of the crossing. When the warning signals were in operation the light at the intersection was red for cars going toward the track, and remained red until the train had passed. Thus a green light at the intersection was an indication that there were no trains on the track just beyond. In the Langston case the court pointed out that at the time the accident occurred the warning signals at the crossing not only were not working but that the light at the intersection was green. The driver was familiar with the way in which the lights were arranged and, therefore, assumed that he could safely cross the tracks. Under those circumstances the court said, 398 Ill. at page 255, 75 N.E.2d at page 366:
"The evidence discloses a case where there was an invitation to cross, with an implied assurance of safety. This is quite different from the ordinary case where the train is, in itself, warning and no invitation is made by the railroad company."
We do not think that the Langston case can be distinguished from the one before us merely because there a green light was also involved. Blinker warning signals which are not working also constitute an invitation to cross a railroad track with an implied assurance of safety from being struck by an approaching train.
A new factor was introduced, however, by the Illinois Appellate Court in Applegate v. Chicago & North Western Railway Co., 334 Ill.App. 141, 78 N.E.2d 793. The case involved a railroad crossing accident, and the court said, 334 IllApp. at page 151, 78 N.E.2d at page 798:
"However, even if that body [the jury] were to find that the signals failed, that fact alone would not constitute negligence on the part of defendant under the prevailing rule in this state, for it must appear that defendant had actual or constructive notice of the defect, and no such evidence was submitted ...