Before DUFFY and KNOCH, Circuit Judges, and SWYGERT, District Judge.
Plaintiffs brought action in the Superior Court of Cook County, Illinois, to recover $125,000 damages from the defendant Railway System consequent on allegedly negligent acts of defendant resulting in a collision, at about 1:00 a. m., June 26, 1956, between defendant's train and Mr. Dengler's automobile, in which Mrs. Dengler (then Mrs. Newton) was the driver and Mr. Dengler a passenger. Plaintiffs were then on their way to Crown Point, Indiana, to get married, - a joint venture.
The cause was removed to the District Court by defendant, and tried to a jury, which brought in verdicts finding defendant "not guilty" as to both plaintiffs, on which the District Court entered judgments from which plaintiffs appeal.
Plaintiffs list the contested issues as:
1. That the verdict rendered was manifestly against the weight of the evidence.
2. Whether the defendant in the operation of its train violated Chapt. 114, Sec. 59, Ill.Rev.Statutes.*fn1
3. Whether the train in question, in backing across the highway, did so without exhibiting proper lights and warning.
4. Whether the jury were improperly instructed.
Plaintiffs argue that the evidence shows that their automobile was proceeding southeasterly along Rand Road, in Cook County, Illinois, (a State highway running in a northwest and southeast direction) at 45 miles per hour, when, without warning or signal, a dark object loomed up, and the caboose at the rear end of an unhitched six- or eight-car freight train backed into their automobile, although Mrs. Dengler immediately applied her brakes and swung to the left, skidding 40 to 50 feet. In addition to the above facts, both plaintiffs testified that they knew the railroad crossing was there, having crossed same a number of times before the accident. The headlights on the automobile shone about 250 to 270 feet ahead and the automobile could have been stopped in 110 to 155 feet.
Defendant's witnesses testified that just prior to the accident, defendant's switch train, comprising an engine, two cars and a way car, caboose, backed off its main line (just south of Rand Road) along its single switch line which crosses the four lanes of Rand Road. When the caboose reached a point about 10 feet south of the southwestern most paved portion of Rand Road, the conductor signalled a stop. After the train had stopped, a brakeman, Harry Opalka, then placed himself about 40 to 50 feet northwest of the track, in the center of the two lanes of Rand Road to flag oncoming traffic. A second brakeman, Billy Thacker, took a similar position on the other side of the switch track in the center of the northwest bound lanes. Both men had lighted flares, visible from about a mile away, and lighted lanterns. The caboose had six-inch marker lights visible from the rear and sides. The engine bell was ringing. A third brakeman, Harold Grisham, was on the platform or just inside the door of the caboose. Then the movement started. This operation was carried out about four times weekly at about the same time of day.
Brakeman Opalka on the southeast bound lanes testified that he saw the plaintiffs' automobile approaching from the northwest, that he waved his flare, called out, and finally had to run and jump to get out of the way of the oncoming automobile. The engineer testified that he saw the automobile approach from about 800 to 1000 feet away and applied the train brakes when he saw that the automobile was not going to stop. The conductor testified that he saw the automobile coming from about 1/4 mile northwest, called out, and jumped off the caboose. The train was then moving at about three to four miles per hour. The defendant's witnesses varied in their estimates of the automobile's rate of speed from 35 to 60 miles per hour. They said that the train stopped with the edge of the caboose just over the center lane of Rand Road in the passing lane for northwest bound traffic. The automobile then was braked, swerved to the left, and hit the caboose. There were skid marks of about 40 feet in length. The caboose, weighing about 20 tons, was derailed, due to the impact.
Plaintiffs contend that the jury disregarded the evidence of the sole disinterested witness, the Deputy Sheriff, who was not an eye witness, but who came to the scene immediately after the accident to make a report on it. He testified that he passed the site of the accident two or three times per night and that he could not recall ever seeing a train cross there before. He testified further that he overheard the conductor tell bystanders that the brakeman was riding the back platform of the caboose where he would have been struck by the automobile had the conductor not called out to him to jump off. Cross-examination brought out the fact that the Deputy Sheriff had not included this statement in his written report and that he could not identify the clothing or describe the appearance of the conductor who had spoken.
Plaintiffs contend that the Deputy Sheriff's evidence shows that defendant's witness, Opalka, one of the brakemen, who testified that he had been out on the road signalling, was, in fact, on the train at the time. However, the evidence disclosed that the train had three brakemen at the time of the accident, and the statement imputed to the conductor by the Deputy Sheriff, if accepted ...