Before SCHNACKENBERG, PARKINSON and KNOCH, Circuit Judges.
Plaintiffs, asserting their own freedom from contributory negligence, sued in tort to recover damages for personal injuries resulting from a railroad crossing accident in Geff, Illinois, on December 24, 1954, allegedly caused by the negligent operation of defendant's train.
The jury returned a verdict for plaintiffs.
Plaintiffs appealed the District Judge's grant of defendant's motion for judgment notwithstanding the verdict, further grant of defendant's motion for new trial (to be effective only in the event that the judgment be reversed), and denial of plaintiffs' later motion for judgment on the verdict, or, in the alternative, for a new trial.
Defendant contends that plaintiffs proved neither exercise of due care and caution for their own safety at and immediately prior to the accident, nor negligence of defendant which proximately caused or contributed to the cause of the accident.
We do not reach alleged errors on the part of the District Court with reference to instructions, because, as indicated below, careful scrutiny of the record dictates a conclusion that plaintiffs, as a matter of law, failed to show themselves in the exercise of the requisite due care and caution for their own safety.
Plaintiffs, residents and citizens of Weakley County, Tennessee, residing near Gleason, were employed by the fisher Body Division of General Motors Corporation, at Willow Springs, Illinois, a suburb of Chicago.
As their testimony indicated, they arose about 3:30 or 4:00 o'clock A.M., December 23, 1954, worked till 10:00 o'clock P.M. that night, retired about 11:00 o'clock P.M., worked from 6:00 o'clock A.M. to 10:00 o'clock A.M. December 24, 1954, returned to their rooms at Summit, Illinois, about eight miles from Willow Springs, and by 11:00 o'clock A.M. started a 450 mile trip home to Gleason, Tennessee, in a 1940 Ford automobile owned by plaintiff Smith and driven solely by his son-in-law, plaintiff Wheat. Thus they had no more than six hours' sleep in the approximately 38 hours preceding the accident.
About 5:00 or 6:00 o'clock P.M. that night, they reached the small village of Geff, Illinois, about 250 to 275 miles from Summit, where defendant operated a train daily over a single track.
A collision occurred at the intersection of U. S. Highway 45 and the track, near Geff. At the time of the impact the speed of the train was estimated at between 20 and 25 miles per hour, and that of the automobile at between 30 and 35 miles per hour.
The highway runs north and south: the railroad track runs in a generally northwesterly and southeasterly direction. Thus for a driver on the highway approaching the track from the north, there is a better view of any train going northwest, than would be available had this crossing been a right angle crossing.
In ascertaining the controlling question as to whether or not plaintiffs exercised due care for their own safety*fn1 it may be helpful to set out the testimony of the plaintiffs' witnesses touching this question.
In the following narrative summary, the actual expressions of the plaintiffs and their witnesses, the Pucketts, will be ...