Appeal from the Superior Court of Cook county; the Hon. FRANK
M. PADDEN, Judge, presiding. Affirmed in part, reversed in part
and remanded with directions.
JUDGE BRYANT DELIVERED THE OPINION OF THE COURT.
Rehearing denied December 18, 1957.
This is an appeal from the Superior Court of Cook county. The cause was tried with judge and jury in that court and the jury returned a verdict in favor of plaintiff, Carson A. Bunton, and against the defendant, Illinois Central Railroad Company, a corporation, and fixed the damages at $45,000. On the post-trial motions the court set aside the verdict of the jury, entered a judgment non obstante veredicto in favor of the defendant, finding it not guilty, on the ground plaintiff as a matter of law was guilty of contributory negligence. The court also denied the defendant's motion for a new trial. The plaintiff appeals from the action of the court in entering the judgment non obstante veredicto, and the defendant enters a cross-appeal against the action of the court in denying its motion for a new trial in which it alleged, among other things, that the verdict of the jury was contrary to the manifest weight of the evidence; that the court erred in granting and in refusing certain instructions; that the court erred in refusing to allow the defendant to read the answers to certain interrogatories, and in allowing the plaintiff to read the answers to certain interrogatories to the jury; that the court erred in refusing to allow the defendant to make certain comment in final argument; and that the damages fixed by the jury were excessive and a remittitur should be granted.
The incident from which this cause of action arose occurred on April 17, 1949, about 2 a.m., being an Easter Sunday morning, at the intersection of a certain public street or highway in the city of DuQuoin, Illinois, known as Park Street, and the railroad tracks of the defendant.
DuQuoin is a town on the main line of the defendant's railroad from Cairo to Chicago, Illinois, and is also a junction point where the branch line runs off to St. Louis. Defendant operates a railroad yard there for the purpose of making up freight trains. There are four places in the city of DuQuoin where the defendant's railroad tracks are intersected by the public streets and highways of the city of DuQuoin. From the south the first intersection, or crossing, is Franklin Street, the second intersection is Poplar Street, the third intersection is Main Street, and the fourth intersection is Park Street, where the incident occurred. There is no evidence of any protection in addition to the normal cross-arm, marked Railroad Crossing, which is maintained at the Franklin Street and Poplar Street crossings. Main Street crossing is the main street of the town and is also the route of Highway Number 51. That crossing is protected with gates and bells and flashers. In addition to the cross-arm protection at the Park Street intersection, in the daylight hours there is maintained a watchman, and when the watchman is not on duty a sign is placed there so indicating. All of these four intersections are at practically 90 degree angles, and the interval between intersections is approximately 500 feet, so that the distance between the Franklin Street intersection and the Park Street intersection is somewhere between a quarter and a half a mile.
The Park Street intersection is an intersection with seven railroad tracks. They fall in two groups. Approaching them from the west, going east, the first track is a "siding" or house track, which serves, among other things, the Illinois Central freight house which adjoins the track to the west. The next two tracks are the two main-line tracks from Cairo to Chicago, the first one from the west being the south bound track and the second one being the north bound track. It is with the group of these three tracks that this incident is principally concerned. There is then a larger space in the crossing and then there are four tracks, one of which is a siding track, one of which is the St. Louis branch, and two of which are lead lines to the railroad yards immediately north of Park Street. The night in question was clear.
It is undisputed that once a person was standing on any one of the particular tracks, because of the level nature of the country and the straightness of the tracks, there would be a clear and uninterrupted view south along that track, except there was a dip in the tracks where the train went out of sight and the headlight again came into view before the gas plant crossing, which was a mile south.
The plaintiff was a pumper in a strip coal mine, operating pumps to keep the mine dry and workable. It was a job requiring vigor and strength. He had worked all day Saturday preceding the morning of the accident. His hours brought him home about 9:30 at night, where he and his wife had dinner. They then left together and went to a tavern in DuQuoin where the plaintiff had a glass of beer, and his father-in-law joined him and his wife and they went to a tavern on the outskirts of DuQuoin and the plaintiff there had a bottle of beer and the plaintiff's wife and the father-in-law left shortly before he did, and he was driving alone. He testified that he drove down Walnut Street, a block and a half west of the railroad tracks and parallel therewith, to Park Street; that in the middle of the block, before he turned east into Park Street, he had trouble with the trunk of his car, which he fixed temporarily. It was a 1938 Chevrolet. As he turned onto Park Street he saw the caboose of a train going south.
The testimony and the exhibits introduced into evidence clearly indicate that by virtue of the brick buildings which were adjacent to the railroad tracks south of Main Street and by virtue of the railroad freight house and a poultry house adjacent to the tracks north of the railroad freight house and close to Park Street, there would not be a clear and uninterrupted view to the south from a point west of Chestnut Street, which was the street to the west of the railroad tracks, paralleling the tracks, and only a short distance from the railroad property. The plaintiff drove his car east on Park Street, crossed Chestnut Street and onto the railroad right-of-way. He stopped his car six or eight feet west of the most westerly track, which was the siding or house track. Admittedly he did not have a clear and uninterrupted view to the south at that point, because of the poultry house and because of the railroad freight house. The plaintiff testified that there were two box or poultry cars on the house track south of Park Street, and in that he is corroborated by two witnesses, and another occurrence witness said he did not know. Plaintiff testified that when he stopped his car he looked and listened, he saw nothing and he heard no whistle or sound which gave warning of an approaching train. In regard to the sound or warning he is corroborated by two witnesses one standing on the station platform, who testified positively that the train did not blow its whistle or ring its bell as it crossed the Franklin Street crossing, as it crossed the Poplar Street crossing, as it crossed the Main Street crossing, and that he heard a bang when it crossed the Park Street crossing; and the other witness, who was within a block of the place of the accident, who testified that he was out of his car and he heard nothing, and that he was in a position to have heard a whistle or a bell if they had been blown or rung.
Having stopped his car and looked and listened, the plaintiff testified and no other person saw or testified to his conduct that he drew forward slowly, at the rate of about ten miles an hour; that as he drew on the siding or house track he saw and heard nothing, and his view was obstructed to the south by the cars on that track; that as the front of his car drew out on the south bound track he looked to the north, from which direction trains on that track would come and in which direction lay the railroad's yards capable of obstructing the view, and then turned to look to the south, and that at that time he saw a flash of light for the first time and heard a whistle blown as the train from the south north bound, hit him, and that after that he was unconscious. When the car was found, the exhibits introduced into evidence indicate that the front right-hand side of the car was struck by the train and thrown about 50 to 100 feet to the north.
The train was a passenger train (Number 4) from Cairo to Chicago, due through DuQuoin at 2:17 a.m., which was not a scheduled stop except to let off certain types of passengers. No one on the train among the entire crew knew that anything unusual had happened as the train passed through DuQuoin.
Evidence was introduced that the distance between the centers of each of the three tracks was 14 feet 9 inches; that the rails between each of the tracks was standard gage: that is, 4 feet 8 inches; that the distance between the center of the house track and the poultry shed, which was the first obstructing view west of the house track, was 9 feet. These figures, by computation, indicate that the distance that the car of the plaintiff would have to travel, allowing for the space from the front of his car to the seat of the driver, after the obstructions on the house track had been cleared, to the point of impact, was approximately 14 feet. The most favorable testimony to the plaintiff in regard to the speed of the train was that it was going approximately 80 miles a hour when it went through DuQuoin.
It is the law in Illinois that contributory negligence on the part of a plaintiff is a matter of fact for the jury to determine, and it becomes a question of law only when the evidence is so clearly insufficient to establish due care that all reasonable minds would reach the conclusion that there was contributory negligence. Thomas v. Buchanan, 357 Ill. 270, 277; Mueller v. Phelps, 252 Ill. 630, 634; Bales v. Pennsylvania R. Co., 347 Ill. App. 466, 473; Geraghty v. Burr Oak Lanes, Inc., 5 Ill.2d 153, 162. It is well settled that if there is any evidence which would support the finding of the jury, the verdict of the jury should not be disturbed and a judgment non obstante veredicto should not be entered. In considering these questions all the evidence tendered in support of the verdict must be considered in its most favorable intendments to the verdict. Any questions of disputed evidence or fact must be resolved in the most favorable manner in favor of the verdict. Walaite v. Chicago R.I. & P. Ry. Co., 376 Ill. 59, 61; Merlo v. Public Service Co., 381 Ill. 300, 311; Bales v. Penn. R. Co., 347 Ill. App. 466, 473; Farr v. C. & E.I.R. Co., 8 Ill. App.2d 168; Lindroth v. Walgreen Co., 407 Ill. 121, 130.
We are not prepared to say that all reasonable minds would agree that there was contributory negligence on the part of plaintiff and that there was no evidence to support the verdict of the jury in that regard, and therefore the judgment non obstante veredicto is reversed.
We now come to the contention of the cross-appellant that the verdict of the jury should be set aside and a new trial granted on the ground that the verdict was contrary to the manifest weight of the evidence. This involves not only a factual question, but the application of one of those terms and definitions of law which gives law its proper plasticity. The right and duty of the Appellate Court to review the testimony and apply this test is statutory (Ill. Rev. Stats. 1955, chap. 110, sec. 92 (3) (b)), dating back over a century, and its constitutionality as a component part of the jury system, based on the historic right in jury trials in England ...