Before MAJOR, FINNEGAN and SCHNACKENBERG, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Thomas Elmer McNelly about 3 P.M. on Christmas Day, 1954, drove his car easterly along Jackson Street in Springfield, Illinois, where that street intersects two railroad tracks of defendant. A southbound train traveling about 15 miles per hour struck the car and, as a result of the collision, McNelly died. An action for damages brought against defendant by McNelly's executrix ended in a directed verdict in favor of defendant at the close of plaintiff's evidence, upon which judgment was entered. Plaintiff has appealed.
The arguments in this court are confined to the question of whether plaintiff's evidence shows as a matter of law that decedent was guilty of negligence contributing to the fatal accident. We now detail the facts appearing in that evidence, in addition to those above related.
A northbound and a southbound track of defendant are located in Third Street. That part of the street on the west side of the tracks and north of Jackson Street is paved.There is an additional 4 or 5 feet between the east edge of that roadway and the southbound track. The part of Third Street west of the tracks is not paved south of Jackson Street. On the northwest corner of Third and Jackson Streets is a two-story building, the southeast corner of which is about 28 feet from the nearest rail of the southbound track. Between a rounded curb and a sidewalk on Jackson Street at the southwest corner of the street intersection are located a telephone pole and a fire hydrant. The sidewalk is along an automobile parking lot on the southeast corner. The curb extends westerly about 25 feet to a driveway about 38 feet wide leading from the parking lot to Jackson Street.
Near the southwest corner of the parking lot is a one story house, where on the day in question Ethel Roy (now Burgess) lived. Deceased had been a frequent visitor at her home.
There are electric signal lights at the railroad crossing which flash at the approach of a train or when one is on the crossing. These consist of a set of flashers in the center of the street on either side of the tracks.
Ethel testified that decedent was in apparent good health, was not hard of hearing nor did he have any impairment of his eyesight; that about 3 P.M. on the day in question decedent left her home in his car and approached Jackson Street; that, when he reached that street at the driveway,*fn1 he stopped and looked both east and west and then turned his car to the right and proceeded slowly onto the tracks. When he made the stop just referred to Ethel could see the train, which she estimated was 100 feet from the crossing. See was then 100 feet south of decedent. When he stopped upon reaching Jackson Street his vision was obstructed by the apartment building except for perhaps 75 feet of the track to the north of the center of Jackson Street. As he turned his car to the right, the flasher lights, according to Ethel, were not operating and did not operate thereafter during the time the train was crossing Jackson Street.
Other witnesses observed that the lights were not flashing immediately after the impact of the train against the car. Several witnesses testified that they heard no bell or whistle from the train before the accident occurred.
Elsie Logan testified that she was standing on the curb near the telephone pole and fire hydrant and that, from that point, she could see to the railroad station more than 4 blocks north. Her sister, Marjorie Logan, testified that, although her sight is not as good as Elsie's, she could see practically to the station, that she was looking between "that apartment building and the trains". The brother of these sisters, Howard Logan, a retired civil engineer, testified that he had lived within a block of the crossing all of his life and had made many observations from the southwest corner of Jackson Street and the tracks, looking to the north, that he could see to the station when standing on the curbline, and that when sitting in a car at that point one could see nearly as far as the station, unless it was "foggy, or something of that kind in the way". He also said that if one did come out of the parking lot and onto Jackson Street, he could see beyond the railroad viaduct over Capitol Avenue, one block north of Jackson Street crossing, and that when one driving reaches a point 30 feet from the west tracks and looks toward the north he can see approximately to the station.
When decedent turned east and drove toward the tracks, he was not moving more than 5 or 10 miles per hour and the approaching train was traveling at 15 miles per hour. He did not slacken his speed prior to the collision.
Plaintiff put in evidence a police report reciting that the engineer stated that the driver of the automobile did not look up until he was on the track in front of the train.
Plaintiff contends that, where there is an obstruction to the view of one approaching a railroad crossing, the question of contributory negligence is one for the jury and not for the court, and also that, where a railroad has erected and maintained signal lights to warn of approaching trains and the same are not flashing, it amounts to an invitation to travelers on the highway and an assurance to them that they may cross over the tracks in safety, and presents a jury question.
On the other hand, defendant contends, inter alia, (1) that plaintiff had the burden of proving that the deceased was in the exercise of due care and caution for his own safety immediately prior to and at the time of the accident; and (2) that motorists may not rely upon the presumption that automatic flashers are working and offer the presumption as an excuse for not looking to see whether a train is ...