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Jellen v. New York

OCTOBER 16, 1964.

PETER F. JELLEN, PLAINTIFF-APPELLEE,

v.

THE NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the Third Judicial Circuit, of Madison County; the Hon. JOSEPH J. BARR, Judge, presiding. Reversed and remanded with directions to grant the motion for judgment notwithstanding the verdict.

REYNOLDS, J.

Rehearing denied December 3, 1964.

Plaintiff's truck was struck by a train of the defendant at the grade intersection of defendant's main line with South Brown Street, in Edwardsville, Illinois, on December 13, 1961. The time was about 7:45 a.m., the weather was cold and clear, and the pavement was dry. Plaintiff's truck, traveling north on South Brown Street, at a rate of speed not greater than 25 nor less than 20 miles per hour was struck by a train of the defendant, which was traveling approximately 54 miles per hour. At the time of the collision, the front part of plaintiff's truck was across the south rail of the railroad. The truck was demolished and plaintiff seriously injured.

Plaintiff sued for personal injuries and the jury awarded him judgment in the amount of $50,000. Defendant appeals to this court.

The accident occurred at a grade crossing with South Brown Street running in a north and south direction and the railroad tracks running in an east and west direction. The train was proceeding from the east to the west. The train was composed of some 68 freight cars and four diesel engines. The engineer was riding in the right front and the fireman and the flagman riding in the left front of the cab of the leading diesel. The diesels were equipped with air horns and bells. The engineer testified there were two sets of crossings in Edwardsville with whistle posts for each set. He further testified he blew his horn for the first set of crossings and was blowing the regular road crossing signal through the second set of crossings including South Brown Street. He further testified he was operating the bell signal on the train. The fireman and the flagman corroborated the engineer's testimony that the whistle was blowing and the bell ringing as the train approached the crossing. There was testimony that the engines or diesels of the railroad stand 15 feet high above the rails, are ten feet wide, have yellow stripes on them and are about 60 feet in length. The evidence of the plaintiff and the defendant showed that at a distance of 90 feet south of the crossing, there were no obstructions and there was a clear view of the tracks for a distance of approximately 320 feet east of the crossing. There were some small bushes, but there was no foliage. The nearest house on Brown Street was 93 feet east of Brown Street and 65 feet south of the tracks. Plaintiff admitted he could see approximately 320 feet down the tracks to the east without obstruction.

Plaintiff estimated his speed at not more than 25 miles nor less than 20 miles per hour. His windows were up, his heater was on and he had his radio going to hear the weather report. He crossed the Brown Street Crossing at least twice each working day. He had lived about three blocks from the crossing for one year and nine months prior to the accident and was familiar with the movement of trains and vehicular traffic over the crossing. It was estimated there were at least 800 to 1000 vehicular crossings per day. Plaintiff testified when he was 90 feet from the crossing he looked to the right and saw no train or anything on the railroad. He drove on to a point approximately 50 to 60 feet from the crossing and looked to the left. Seeing nothing to the left he continued at the same speed to a point about 35 to 40 feet from the crossing and looked again to the right. At that time, he saw the train approximately 100 feet away. He immediately tried to apply his brakes and had braked to nearly a stop with his front wheels over the south rail of the track when the collision occurred. He was positive there was no bell or whistle sounding as he approached the crossing or at the time of the collision.

Violet Reese lived near the crossing on Brown Street at the time of the accident. She heard the vibration and noise of the train coming, but did not hear any whistle or bell before the collision.

Lillian Onori lived near the crossing on Brown Street at the time of the collision. She heard the rumble of the train, but did not hear any bell or whistle.

Nancy Schipkowski was with her boy friend Bob Carter on Wolf Street, about two blocks west of the Brown Street crossing. She did not hear any bell or whistle, but admitted there might have been one and she did not hear it. Carter did not hear any whistle or bell.

The first point raised by the defendant is that plaintiff was guilty of contributory negligence as a matter of law. It contends that a person approaching a railroad crossing must do so with a degree of care proportionate or commensurate to the known danger and failure to do so constitutes contributory negligence. If the plaintiff was guilty of contributory negligence he cannot recover. To determine whether there was contributory negligence as a matter of law, only the evidence that is not controverted can be considered. The speed of the train as testified by the train crew is not controverted and can be considered as proved to be 54 miles per hour. The speed of plaintiff's truck from 90 feet south of the crossing to the collision point, is established by the plaintiff and is not controverted. He establishes this speed at not more than 25 nor less than 20 miles per hour. The weather, the dry condition of the pavement and the good visibility are not in dispute. The ability of the plaintiff to see to the east along the railroad tracks a distance of at least 320 feet, is admitted by the plaintiff. There was no testimony of any other traffic being involved in the accident.

The plaintiff had lived within three blocks of this crossing for a year and nine months. He was familiar with it, knew of the trains that crossed it and he estimated the vehicular traffic over it at at least 800 vehicles per day. He traveled over the crossing at least twice each working day.

The engine of the train or the first diesel unit stood over fourteen feet high, was fifty feet long and had yellow stripes.

Leaving out the question of whether the whistle had been sounded or was sounding, whether the bell was or was not ringing, since they are disputed questions, and considering only the unquestioned facts, the question raised by the defendant on appeal is whether the plaintiff was approaching the crossing and not exercising the degree of care proportionate or commensurate to the known danger, or stated another way, was the plaintiff guilty of contributory negligence as a matter of law?

The question of contributory negligence becomes a question of law only when the evidence is so clearly insufficient as to care or so clearly showing lack of care that all reasonable minds would agree that the plaintiff was guilty of contributory negligence. Bales v. Pennsylvania R. Co., 347 Ill. App. 466, 1 ...


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