Duffy, Schnackenberg, and Knoch, Circuit Judges.
Plaintiff-appellee, Ethel R. Haley, administratrix of the estate of Harold Haley, brought action against the defendants-appellants, the Baltimore and Ohio Railroad Company, the Baltimore and Ohio Chicago Terminal Railroad Company, and Charles J. Rabidoux, engineer for the Baltimore and Ohio Railroad Company, charging them with negligence in the operation of a train at a crossing where a collision occurred on May 21, 1960, in which Harold Haley lost his life and in which the automobile he was driving was demolished.
Jurisdiction was based on diversity of citizenship. The jury brought in a verdict of guilty on a wrongful death count and assessed damages against the defendants in the amount of $22,500, and a verdict of not guilty as to the property damage. Judgment was entered pursuant to the jury's verdicts and this appeal followed.
The evidence showed that the deceased Harold Haley was a part-time taxi driver. On the day of the accident his employer allowed him to leave early. Shortly before 10:00 o'clock p.m., he drove off in his own automobile, a recently acquired Volkswagen. This automobile has been variously described as white, off-white, light gray, and nearly white with a blue tint. Mr. Haley's employer testified that both the automobile and its driver appeared normal to him and that the headlights of the Volkswagen were lighted.
The site of the accident was in Chicago Heights, Cook County, Illinois, at the intersection of Joe Orr Road, which runs east and west, and four railroad tracks running north and south, operated by the two railroad companies.
The crossing is protected by six standard cross-buck signs. Plaintiff makes a point of the fact that the embankment of the C. and E.I. Railway runs in a north-northeasterly and south-south-westerly direction some 355 feet west of the westernmost of the four tracks and partially blocks the view of an eastbound motorist, such as the decedent, as he proceeds easterly along Joe Orr Road. However, from a point 400 feet west of the third track, where the accident occurred, and looking southeast, the direction from which the locomotive was coming, there are no physical obstructions to seeing an engine for a distance of more than 1,000 feet. Plaintiff argues that this may be true in daylight but not at the time of the accident. It is clear however that there was no obstruction to a clear view of a lighted locomotive proceeding from that direction.
There was a factory, not in operation at the time of the accident, some 500 feet to the south, with a watchman's guardhouse about 550 feet from the crossing. The watchman, Carl Hopkins, was in his guardhouse with a clear view of the crossing and the approach to it.
Mr. Hopkins was an important witness in this case. He testified that he saw the locomotive, with its headlights shining, backing northward on the main track. He heard the bell and whistle. There was uncontroverted evidence that the engine had twin seal beam 200 watt headlights at the top of the engine shining in the direction in which it was moving. We cannot agree with the plaintiff that the mere fact that the engine was backing was significant. Unlike the situation in some of the cases cited by plaintiff (Chicago, M. & St. P. Ry. Co. v. Walsh, 57 Ill. App. 448 ; Chicago, R.I. & P. Ry. Co. v. Sharp, 8 Cir., 1894, 63 F. 532) defendants' engine was not pushing unlighted railway cars ahead of it. In addition to the headlights, the engine had two lantern lights, a footboard light and a smaller "number light". There was evidence that the bell rang continuously for a distance from at least 1320 feet up to the crossing itself, in addition to the blowing of the whistle.
There were some railway cars nearby but these were stationary in a location east of the main track where they could not under any circumstances obstruct the view. There were no automobiles in the factory parking lot.
Mr. Hopkins had a clear view of the road as well. He watched an automobile approaching which he testified was the automobile involved in the collision. He described it as not having headlights, proceeding at a speed of between 40 to 60 miles per hour. There was no posted speed limit on the road. He saw it from the time it passed the viaduct, more than 350 feet from the site of the accident. He said the car appeared dark or black. Plaintiff contends that this could not have been her decedent's automobile which was white or almost white in color with lighted headlights.
Although Joe Orr Road is not itself lighted, there were lights under the roof of the guardhouse which shone down and onto the parking lot and which reflected onto the road, on which Mr. Hopkins testified he would be able to see a man walking.
About 10:15 o'clock p.m., the decedent's Volkswagen eastbound on Joe Orr Road collided with defendants' moving northbound locomotive, striking the side of the locomotive. Edward John Bitten, a fireman on the locomotive, testified that the impact sounded like an explosion and that the locomotive engine which weighed 246,500 pounds, rocked over to the east. At the time of the impact, the engine was moving at a speed estimated by one witness as 15 to 20 miles per hour and by another witness at 10 to 15 miles per hour. The footstep flash plate and grab iron on the side of the engine were bent. As indicated, the Volkswagen was virtually demolished, and its driver was killed.
Plaintiff argues that the automobile which Mr. Hopkins saw must have been another automobile because he said that when he first saw it, it appeared dark or black. He also said that when he saw it after the accident it looked light gray in color and that it was the same automobile. He watched the approaching automobile and the moving locomotive but did not actually see the impact. He heard the commotion. He had also said in a prior deposition that his first thought was that the dark automobile had got by the train, until he heard the commotion. Plaintiff reasons that this must have been what happened: that the dark ...