Appeal from the Circuit Court of Will County; the Hon. JAMES
V. BARTLEY, Judge, presiding. Reversed.
This action was brought by Ella Government, administrator of the estate of Lester Government, deceased, plaintiff-appellee, on a Complaint consisting of two counts against the Illinois Central Railroad Co., defendant-appellant, and John J. Brennan, defendant, an engineer employee at the time of the occurrence of the defendant, for the alleged wrongful death of Lester Government, deceased. The defendant John J. Brennan was later dismissed as a party defendant. The decedent, Lester Government, had died as a result of a collision between a pickup truck driven by him and a passenger train of the defendant railroad company at a public crossing one mile south of Peotone, in Will County. A jury trial resulted in a verdict for the plaintiff of $15,000. Count II of the Complaint, charging wilful and wanton misconduct, was dismissed on motion of the plaintiff, and paragraphs 7 and 8 of Count I of the Complaint were stricken on motion of the defendant, consented to by the plaintiff, which paragraphs had alleged that the defendant ran its train at a reckless and dangerous speed at a place where special care should have been taken, that it failed to give reasonable notice of the approach of the train, and that the defendant was negligent by reason of the fact that it did not have adequate signal protection to warn the decedent of the approach of the train. Motions were made by the defendant at the close of the plaintiff's evidence and at the close of all the evidence for a directed verdict, the first of which motions was denied and a ruling was reserved on the second motion. A judgment for the plaintiff was entered on the verdict, from which this appeal is taken by the defendant railroad company after the denial of its post trial motion for judgment notwithstanding the verdict or for a new trial.
In the Complaint the plaintiff had alleged, inter alia, that she had been appointed administrator of the estate of Lester Government, deceased, and that she brought suit as such administrator. The defendant denied this allegation. No proof of the appointment was made on the trial. After the defendant's post trial motion was made, the plaintiff moved for leave to file an amendment to the Complaint which included a paragraph realleging the appointment of the plaintiff as such administrator and making profert of her letters. This amendment was allowed to be made over objection by the defendant.
When the case went to the jury the only charge of negligence against the defendant remaining in the Complaint was that the defendant was negligent by reason of the fact that it permitted a tall, long series of brush to grow up along the right of way of the railroad on railroad property to such an extent that the view from the crossing was blocked so that persons could not adequately see the approach of trains from north of the crossing when such persons were approaching the crossing in a westerly direction from the east, as was the decedent. This allegation was denied by the defendant.
The defendant's theory is that the plaintiff failed to prove the material averment of due care on the part of the decedent and that the decedent was guilty of contributory negligence as a matter of law; the trial court should have directed a verdict in favor of the defendant; there was error in instructing the jury; the plaintiff failed to prove the material allegations of her appointment as administrator; and the court erred in permitting the filing of the amendment to the complaint.
The plaintiff's theory is that the decedent was killed due to the negligence of the defendant in allowing bushes to grow along the right of way so as to obstruct the view of a person crossing the right of way; the evidence as to the negligence of the defendant and the exercise of due care by the decedent is sufficient to present a question on the issues to the jury; proof of her appointment as administrator was not required, and the Court rightly exercised its discretion in permitting the plaintiff's amendment.
The collision occurred on December 6, 1955, at about 11:15 a.m., at a point where a gravel township road, extending east-west, crosses the main line of the defendant railroad, extending north-south, about one mile south of Peotone. The area is open country. At that point the railroad company has three tracks running in a north and south direction, numbered 1, 2 and 3, from west to east. The train was on track number 1, the farthest west track, and the train was going south. The tracks are straight and level. The track roadbed is elevated about 4 1/2 feet above the adjoining flat right of way and there is a sloped embankment from the roadbed down to the adjoining right of way. The gravel township road crosses the tracks from east to west. Highway No. 54, running north and south, parallels the railroad right of way south of Peotone and east of the railroad company's right of way. The west edge of Highway 54 is about 95 to 100 feet east of the east rail of the east track at the crossing. The day was cold and clear, visibility was good, and the crossroad was dry.
The witnesses for the plaintiff were the plaintiff herself, Charles Barber, the fireman for the Illinois Central Railroad Company on the train at the time of the occurrence, LaVern Jacobs, Clyde Meyer, Lee Russell, Milan W. Schroeder, and Lloyd Weller.
Schroeder testified that he had sold the decedent Government the pickup truck that was then being driven by Government; it was a 1953 Dodge; the eyes of the driver would be 5 to 6 feet from the ground while sitting in the truck; this truck when driven by the decedent at 4 to 5 miles per hour could be stopped by Government in 35 to 40 feet. The witness said he himself could stop it at that speed within 10 to 15 feet, but Government's reaction time would be longer, he being older. The brakes were in good condition.
Russell testified that he was a photographer and took several pictures for the plaintiff within a week after the accident. Those photographs are in evidence as plaintiff's exhibits.
Meyer testified that he was a farmer living 1 1/2 miles west of this railroad crossing and that he crossed the tracks travelling east from his home just a few minutes before the accident. After crossing the tracks and reaching Highway 54 he turned south. He did not see this collision. He had observed the pickup truck of Lester Government coming from the north on Highway 54 at that time and it was about a quarter of a mile from, or north of, the intersection; Meyer was about 15 or 20 rods south of the intersection when the train passed him; he did not hear the bell or horn of the train; the bell and horn might have been sounded and he didn't hear them; he saw this train at the north edge of Peotone, a mile north of this crossing, when he was on the tracks looking north; he saw some bushes north of the crossing, starting about 400 feet north of the crossing, the bushes being about 5 or 6 feet high, and continuing northwardly about 200 feet. From a point 400 feet north of the crossing down south to the crossing there is no obstruction to the view looking to the north; the bushes are 5 or 6 feet above the roadbed of the railroad; the height of the roadbed from the right of way is 4 1/2 feet and the bushes were 5 or 6 feet from the roadbed where the tracks were. Lester Government, the decedent, had lived in the vicinity for a number of years, and was familiar with this crossing. The front end of the train was about 225 feet from the crossing when it stopped.
Jacobs testified that he lives three-quarters of a mile from this crossing on the south side of the road; he crossed there 3 or 4 times a week; he had observed the shrubbery or bushes growing along the tracks approximately 300 feet north of the crossing and extending another 200 feet northwardly; they are about 6 feet above the roadbed; looking north from the east side of the crossing these bushes do not at any point obstruct the view of a train on the west track coming from the north; a person could see to Peotone, a mile north of the crossing, from a point 6 feet from the east track; the bushes do obstruct the view or opening of the St. Paul viaduct (a half mile north of the crossing); the view would be obstructed from where the bushes start for about 200 feet north.
Weller testified that he was familiar with this crossing; he had observed the bushes, viewing them in December, 1955, vaguely; they commence 175 to 200 feet north of the crossing, though he did not measure, and extend 4 to 5 feet above the tracks; he said they protruded up about 13 feet (meaning, presumably, from the foot or base of the embankment); at 50 feet and at 20 feet east of the east track looking north he said the bushes would obstruct the view of a train approaching from the north on track number 1, the west track, though he did not know how high a train would be.
Ella Government, the plaintiff, testified that she was the widow of Lester Government, he was a farmer, owned his own farm, was 64 years of age, in good health, she and two adult self-supporting sons ...