Appeal from the Circuit Court of Cook County; the Hon. EDWARD
E. PLUSDRAK, Judge, presiding. Reversed and remanded.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT. Defendant appeals from an adverse judgment of $25,000 entered on a jury verdict. The cause of action arose out of a collision between plaintiff's automobile and a switch engine owned and operated by the defendant.
The accident occurred at approximately 12:45 a.m. on December 9, 1956, as plaintiff was driving east along 31st Street in Chicago. He had left a company Christmas party at about 11:40 p.m. and due to the inclement weather conditions agreed to drive his co-worker, Mrs. Haxel, to her home in the vicinity of the accident. The visibility was poor at the time due to a heavy snowfall, and the street was illuminated only with old-fashioned open-bulb streetlights. As plaintiff was proceeding along 31st Street in his 1941 Studebaker, he approached an intersection with the Illinois Northern's tracks near Homan Avenue. The tracks intersect 31st Street at a diagonal in a northeast to southwest direction and measure almost 127 feet across the street, the width of the street itself being only about 44 feet. There was no watchman on duty at the crossing, nor were there any mechanical warning devices to signal the approach of a train. There was merely a standard cross-buck sign which, according to plaintiff and the police officer who investigated the accident, was covered with snow. Plaintiff further testified that, although he was familiar with the crossing, having worked in the area for many years, he had never crossed the tracks before at night and was unable to see the rails on the night in question as they were covered with a three-inch accumulation of snow.
Plaintiff approached the intersection at a speed of about fifteen miles per hour. He looked to his right, went onto the tracks, and then for the first time looked to his left and was instantly struck by the defendant's engine. He stated that he did not hear a bell or a whistle. On cross-examination he said that he did not even have time to put his foot on the brake.
Following the accident plaintiff was hospitalized for cuts, bruises and a concussion. He returned to work in January of 1957 and in March of that year suffered a stroke.
At the close of all the evidence, the defendant moved for a directed verdict in its favor. The trial court denied the motion and it is principally this ruling which the defendant here alleges as error.
The law in Illinois is clear that a verdict must not be directed for the defendant if there is any evidence which when viewed most favorably to the plaintiff proves or tends to prove plaintiff's claim or from which reasonable inferences can be drawn to support his claim. Zide v. Jewel Tea Co., 39 Ill. App.2d 217, 188 N.E.2d 383. Defendant urges, however, that even under this rigid standard it was entitled to a directed verdict as a matter of law. Defendant points to Miksatka's own testimony that he did not look to his left until he was on the railroad tracks and maintains that this constitutes contributory negligence as a matter of law.
It is undisputed that the Illinois cases impose upon a plaintiff the burden of proving his freedom from contributory negligence, and that this includes proof that he used that degree of care commensurate with the known danger of railroad crossings. Greenwald v. Baltimore & O.R. Co., 332 Ill. 627, 164 N.E. 142; Carrell v. New York Cent. R. Co., 384 Ill. 599, 52 N.E.2d 201. It is also clear that the failure of an automobile driver to look as well as listen for an approaching train upon entering a railroad crossing is evidence of contributory negligence. Tucker v. New York, C. & St. L.R. Co., 12 Ill.2d 532, 147 N.E.2d 376 (1958).
In the Tucker case, supra, the court held at page 536:
It is also true, as plaintiff contends, that there may be facts such as obstructions to view or distractions that might mislead plaintiff, without his fault, or excuse a failure to look and listen. Gills v. New York, Chicago and St. Louis Railroad Co. 342 Ill. 455; Chicago and Alton Railroad Co. v. Pearson, 184 Ill. 386.
However, in that case the court upheld a directed verdict for defendant based on the specific evidence that plaintiff had a clear, unobstructed view of any approaching train for one-fourth of a mile, and stated:
From a review of the entire record, we find neither evidence nor any legitimate inference which may legally be drawn therefrom, which would either excuse plaintiff's failure to look, or convince a reasonable mind that he looked but did not see the train. (Emphasis added.)
The implication of this statement is clear: plaintiff's failure to look for an oncoming train is not contributory negligence per se, but rather is only strong evidence going to the issue of his due care. As the Supreme Court declared in Chicago & N.W. Ry. Co. v. Dunleavy, 129 Ill. 132, 22 N.E. 15, at page 148:
Undoubtedly a failure to look or listen, especially where it affirmatively appears that looking or listening might have enabled the party exposed to injury to see the train and thus avoid being injured, is evidence tending to show negligence. But they are not conclusive evidence, so that a charge of negligence can be predicated upon them as a matter of law. There may be various modifying circumstances excusing the party from looking or listening, and that being the case, a mere failure to look or listen cannot, as a legal conclusion, be pronounced negligence per se.
See also, Humbert v. Lowden, 385 Ill. 437, 53 N.E.2d 418; Gillan v. Chicago N.S. & M. Ry. Co., 1 Ill. ...