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Zank v. C.r.i. & P.r.r. Co.





APPEAL from the Appellate Court for the First District; — heard in that court on appeal from the Circuit Court of Cook County; the Hon. THOMAS J. COURTNEY, Judge, presiding.


Rehearing denied November 16, 1959.

This is an action for personal injuries suffered by plaintiff's intestate, Lillian Zank, when a car in which she was riding collided with a passenger train of the defendant Chicago, Rock Island and Pacific Railroad Company, herein called the railroad. Plaintiff's intestate died thereafter from other causes and plaintiff sued both the railroad and the defendant driver Edna Stangle, herein called the driver. Upon trial, the court overruled defendants' motions for a directed verdict, for judgment notwithstanding the verdict and for new trial, and entered judgment against both defendants on the jury verdict in the sum of $15,000.

The Appellate Court reversed and remanded with directions to the trial court to enter judgment for defendants notwithstanding the verdict on the ground that a directed verdict should have been entered for the defendants because there was no evidence establishing the decedent's freedom from contributory willful and wanton misconduct. (19 Ill. App.2d 278.) We granted leave to appeal.

The complaint charged the railroad with negligence and the driver with willful and wanton misconduct. The general and long accepted rule of law is that contributory negligence of the plaintiff is a defense for a defendant charged with negligence. The corollary of this rule, which is of more recent origin, is that contributory willful and wanton misconduct of the plaintiff is a defense for a defendant charged with willful and wanton misconduct. Valentine v. England, 6 Ill. App.2d 275; Gulf, Mobile and Ohio Railroad Co. v. Freund, (8th Cir.) 183 F.2d 1005; Lane v. Bobis, 340 Ill. App. 10; Willgeroth v. Maddox, 281 Ill. App. 480; Restatement of Torts, vol. 2, sec. 503.

Thus, the determinative question presented to us is whether the evidence, taken most favorably to the plaintiff, shows that plaintiff's intestate was guilty of contributory willful and wanton misconduct as a matter of law. If she was guilty of such misconduct, the verdict against the driver must fall and, a fortiori, the verdict against the railroad cannot stand.

While we are precluded from weighing the evidence, except as to equitable issues, to determine where the preponderance lies, (Ill. Rev. Stat. 1957, chap. 110, par. 92(3) (b),) where a motion is made in the trial court to direct a verdict, or for judgment notwithstanding the verdict, or where the Appellate Court directs or enters such judgment, we may examine the evidence to determine whether, as a matter of law, there is any evidence in the record to prove the essential elements of the case. Tucker v. New York, Chicago and St. Louis Railroad Co. 12 Ill.2d 532; Robinson v. Workman, 9 Ill.2d 420; Illinois Central Railroad Co. v. Oswald, 338 Ill. 270.

It is clear that in deciding that the plaintiff cannot recover as a matter of law, we must first consider all the evidence in the aspect most favorable to the plaintiff, together with all reasonable inferences to be drawn therefrom. If, when so considered, there is any evidence, standing alone and considered to be true, together with the inferences that may legitimately be drawn therefrom, which fairly tends to support the jury verdict, it is error for the Appellate Court to direct a judgment notwithstanding the verdict. Tucker v. New York, Chicago and St. Louis Railroad Co. 12 Ill.2d 532; Seeds v. Chicago Transit Authority, 409 Ill. 566; Lindroth v. Walgreen Co. 407 Ill. 121.

The collision in which plaintiff's intestate was injured occurred in Chicago at 4:00 P.M. on January 3, 1952, at the right angle intersection of 94th Street, which runs in an easterly and westerly direction, and the railroad's double tracks. The streets were icy and slippery but it was light and clear. Houses are located on the four corners of the intersection, together with trees and shrubbery, and cinders and dirt were embanked on the edge of the right of way, all of which tended to impair the visibility. The driver testified that the house on the northeast corner would obstruct visibility to the north until a westbound vehicle was within 10 feet of the first track, while an employee of the railroad testified that the house would obstruct the view until such vehicle was within 50 feet of this track. The photographs of the locale also substantiate the contention of limited visibility at the intersection.

The driver proceeded west on 94th Street at a speed of 10 to 15 miles an hour, and testified that she slowed down to two to three miles per hour when she was 15 feet from the first or northbound track; that she looked to the south and saw no approaching northbound train; and that, while still on the northbound track, she looked to the north and saw a train approaching on the second or southbound track, about 100 feet away. There was a distance of 13 feet between the northbound and southbound tracks and a slight incline toward the second or southbound track, and in relating the subsequent events, she said, "I stepped on the gas in an attempt to get by in order to beat the train across the tracks." She did not remember engaging in any conversation with the plaintiff's intestate who sat to her right.

An employee of the railroad saw the driver looking toward the passenger, which would be to the north, and testified that they were engaged in conversation, but he did not pay too much attention to the passenger. He further testified that when the automobile was 10 to 15 feet east of the southbound track and the train was five or six feet north of 94th Street, he waved both hands and hollered, "Stop;" and that the car was approaching at 15 miles per hour, but he does not know if it slowed down. The driver testified that she did not hear a bell ringing as she approached the crossing, but the railroad employee testified that the automatic bell, which had been out of order, was ringing.

The only crossing protection at the intersection was two crossbuck railroad crossing signs and a single crossing bell which was activated by an electrical impulse. The engine of the southbound train collided with the right front corner of the car, causing injuries to plaintiff's intestate.

In addition to the general verdict, the jury, in a special interrogatory, found that the driver was guilty of willful and wanton misconduct at the time of or just before the occurrence. The Appellate Court found that the special interrogatory was not against the manifest weight of the evidence and further found, as a matter of fact, that the driver drove at a speed of three or four miles per hour onto the northbound track before looking north; that when she looked to the north and saw the approaching train, it was 150 feet away; and that despite the snow and ice on the crossing, she tried to "beat the train" across the intersection, although she was then travelling only three or four miles per hour and had the width of the northbound track ...

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