Appeal from the Circuit Court of Cook County; the Hon. B. FAIN
TUCKER, Judge, presiding. Reversed and remanded.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Rehearing denied May 19, 1965.
Defendant railroad appeals from a verdict and judgment in favor of plaintiff in the amount of $9,500. Plaintiff sued for personal injuries and damages to his automobile resulting from a collision between his car and defendant's train while plaintiff was driving west on 112th Street at and near a crossing of defendant's tracks. The fact of the occurrence on November 29, 1958, at that place was not denied in defendant's answer.
The evidence at the trial disclosed that 112th Street was a bumpy, dirt or cinder road used by plaintiff and other employees of the Great Lakes Carbon Corporation and by persons delivering to the plant; that the road was sometimes repaired by Great Lakes Carbon and at other times by unknown persons; that there are no gates, watchmen, lighting, bells or flashers at the crossing; that two cross buck signs are placed at the crossing but there was no indication as to who installed or maintained them.
Defendant's key argument for reversal is based on the giving of Plaintiff's Instruction No. 7:
Every railroad corporation shall cause a bell or a whistle or horn to be placed and kept on each locomotive to be rung or sounded by the engineer or fireman at a distance of at least one quarter mile from the place where the railroad crosses or intersects any public highway and shall be kept ringing or sounding until the highway is reached.
If you find that the defendant violated the statute on the occasion in question, then you may consider that fact together with all of the other facts and circumstances in evidence in determining whether or not the defendant was negligent immediately before and at the time of the occurrence.
It is contended that by this instruction the court decided as a matter of law that 112th Street was a public highway within the contemplation of the statute instead of submitting this question for jury determination. Defendant cites from Chicago & A.R. Co. v. Dillon, 123 Ill. 570, 578, 15 N.E. 181:
The objection to the first [instruction] is, that it "is singularly confusing." The greater portion of it is a mere statement of what the statute requires of railroad companies when crossing public highways, and the remaining portion simply tells the jury that if they find, from the evidence, that the place of the accident was at a public highway crossing, then it was the duty of the defendant to ring the bell or sound the whistle, as required by the statute. In other words, the court told the jury what the statute enjoined, and then instructed them that it was the duty of the defendant to obey it, if shown by the evidence to be within its provisions. We perceive nothing in this that the most hypercritical could object to. (Emphasis supplied.)
In Cleveland, C., C. & St. L. Ry. Co. v. Baker, 106 Ill. App. 500, the evidence showed that the road had been in general use by the public, was much traveled for five years and was used extensively for hauling coal. The court approved this instruction:
If you find from the evidence that the crossing where the collision happened was a part of a roadway connecting two public highways, and that such roadway and crossing was opened to the free and general use of the traveling public, and that the same was at the time of the collision and prior thereto used by the public as public highways are ordinarily used by the public, and that the defendant railroad company knew these facts, and further, that the railroad company recognized such crossing in the manner of approaching and passing over said crossing, then for the purposes of imposing the duty on the defendant to comply with the statute in regard to giving signals, such crossings must be regarded as in the statute requiring signals, as explained in these instructions.
No evidence was produced to show that 112th Street was a public highway by dedication. The title of "street" did not make it a public highway and the admission in defendant's pleadings that the accident happened on 112th Street did not give it that status. Whether it became a public highway by use was a question of fact for the jury.
In Shaver v. Associated Truck Lines, 322 Mich. 323, 33 N.W.2d 815, the determination whether Ampersee Road was a public highway was discussed. The Supreme Court of Michigan said:
"The term `avenue' or `street' is a misnomer for that lane or private drive or alley or whatever it is. It is in no sense a city street. It isn't maintained by the city. It doesn't go anywhere except to the rear of the Consumers Power plant. It isn't used by the traveling public generally, and it ...