APPEAL from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 27, 1967.
Raymond and Cleo Pedrick, husband and wife, brought this action in the circuit court of Tazewell County seeking damages from The Peoria and Eastern Railroad Company for injuries sustained when their automobile collided with one of defendant's trains at a railroad crossing in Pekin. Defendant's motion for a directed verdict, made at the close of plaintiffs' evidence and reviewed at the close of all of the evidence, was denied. The jury returned a verdict in favor of Raymond Pedrick in the amount of $2500 and for Mrs. Pedrick in the amount of $15,000. Judgments were entered thereon, and defendant's post-trial motions for judgments notwithstanding the verdicts were denied. On appeal, the Third District Appellate Court reversed the judgments without remandment on the ground that the jury's finding that defendant was guilty of negligence was against the manifest weight of the evidence and that plaintiffs were guilty of contributory negligence as a matter of law. (63 Ill. App.2d 117.) We granted leave to appeal.
The collision took place in Pekin at the point where North Fifth Street and defendant's railroad tracks intersect at right angles. North Fifth Street runs in a north-south direction and defendant's track runs east and west. The Pedrick automobile was being driven in a northerly direction and was struck from the left by defendant's train.
The crossing is protected by two electrically operated flasher signals, each signal having two red lights which flash on and off when in operation. The intersection is also guarded by two white crossarm signals on which appear the words "Railroad Crossing". As a motorist approaches the intersection from the south, as did Raymond Pedrick, his vision to the west is obstructed by a grocery store building. However, at a distance of 50 feet from the intersection, he can see 75 feet down the tracks in that direction, and, when he gets to within 15 feet of the crossing, his view to the west is totally unobstructed.
The accident occurred about 5:45 P.M. on December 7, 1960. Raymond Pedrick was driving. His wife was a passenger in the front seat and his sister-in-law, Hazel Lindsey, was seated in the rear. Both plaintiffs had been over the crossing a number of times, and were familiar with it. When the car was about 200 feet from the intersection, Cleo Pedrick said to the occupants of the car, "Up and down here is a railroad track." Later, when the car was only 100 feet from the tracks, she stated, "I hear a train." She testified that her husband slowed down when she mentioned that there was a railroad crossing ahead and slowed down even further when she mentioned that she heard a train.
Raymond Pedrick admits that his wife advised him of the crossing and that he heard her statement that she heard a train. He testified that he looked to the left when he was 35 feet and 25 feet from the crossing and, by the time he reached the track he had slowed to a point where he could have stopped his car within 4-5 feet. He also heard the train whistle.
The overwhelming evidence in the record indicates that the train entered the intersection at about 13 miles per hour. While there is some conflict as to whether the bell was ringing and the headlight was on, the only allegation of negligence submitted to the jury was that defendant negligently permitted its train to operate through the intersection without activating the red flasher warning signals.
Ten witnesses testified on the issue of whether the flasher lights were working, three for the plaintiffs and seven for the defendant. On direct examination, Raymond Pedrick testified that he "wouldn't know" whether the flasher lights were on at the time of the collision. However, on cross-examination, he said, "No, there wasn't none * * * [There] just wasn't no lights * * * working * * * I saw no lights at all on either side." He also testified that he saw no car approaching him and did not notice any car following him and that he saw no train headlight and heard no bell.
Cleo Pedrick testified that she "never saw any flasher lights burning prior to the collision" and did not see a train. She also said that she did not see an automobile coming towards their car, and did not know whether a car was following them.
Hazel Lindsey, who also had a lawsuit pending against the defendant, testified that her mental ability had been affected somewhat by the accident, and she could not remember very much about it. She said that "she was sure there were no flasher lights at the crossing" and that she did not hear a whistle. She admitted, however, that, in an earlier deposition, she had stated that she did not know whether she heard a whistle. She said she never saw a train.
Four crewmen from the train testified. Raymond Brown, who was in the caboose of the train, said that he could tell that the headlight was on prior to the accident, because it reflected in the dark, but that he could not tell whether the bell was ringing. He said that after the accident he noticed that the flasher lights were operating on both sides of the crossing. Walter Retzalk, who was the head brakeman on the train, said that the headlight of the train was on bright, but that, from the second engine where he was sitting, he was not able to tell if the bell was working. He also testified that he saw the red flasher working both before and after the collision. Ellridge Horb was the assigned engineer on the train. He said that the headlight was on bright prior to the accident, that he saw the flasher on the north side of the crossing in operation, that he was on the wrong side of the train to see the other one, but that after the accident he saw them both working. Wilbur Grant, also an engineer, was seated in the cab of the engine. He said that he controlled the headlight and had it turned on bright prior to the collision, and that he also controlled the bell and had it ringing prior to the accident. He further testified that he could see the flashers working before the collision. In addition to the testimony of these crewmen, Loren McKee, defendant's signal maintainer, first testified that "They was off", and then that he had tested the flasher lights on November 28, 1960, and about 2 1/2 hours after the accident, and had found them operating properly on both occasions.
Two disinterested witnesses testified. The first was Thomas Lee Faichney, a section laborer for the Peoria and Pekin Union Railway. He said that he approached the crossing at Fifth Street from the north and saw the flasher signal working when he was 2 1/2 to 3 blocks from the intersection. He said that he stopped when he reached it, and he heard the bell and whistle of the train and saw its headlight. John T. Lowman, an insurance broker, testified that he was following plaintiffs' car prior to the collision. He said he observed the flashers operate when he was approximately 200 feet from the intersection and that he heard the train's whistle and saw its "headlights" prior to the accident.
In our judgment the controlling issue herein is the troublesome, though familiar, question as to the circumstances under which the trial judge may determine that the proof presents no factual question for the jury's consideration and that a verdict should be directed or judgment non obstante veredicto entered. While there is no unanimity as to the governing principles, it seems reasonably well settled that the same standard shall be applied in either case; and such is the law of this State. (Finley v. New York Central Railroad Co., 19 Ill.2d 428, 434; Nutwood Drainage and Levee Dist. v. Mamer, 10 Ill.2d 101, 112.) The difficulty in determining what is or should be the governing principle was well pointed up by Judge Learned Hand in 1932 in Chamberlain v. Pennsylvania Railroad Co., (2d cir.) 59 F.2d 986, 987, when he said: "The most that has been said probably all that can be is that there comes a point where the evidence no longer justifies any verdict but one." It is apparent that some uncertainty presently exists as to the standard applicable in this State and that a review thereof may be in order. (See the able and interesting discussions in the majority opinion of Mr. Justice Dempsey, concurred in by Mr. Justice Sullivan, and in the dissenting opinion of Mr. Justice Schwartz in Mesich v. Austin, 70 Ill. App.2d 334; Londrigan, "Judge or Jury Who weighs the evidence?" 55 Ill. B.J. 732.)
Generally speaking, there is basic agreement with the statement of Buller, J., in Company of Carpenters v. Hayward (1 Dougl. 374, 99 Eng. Rep. 241 (King's Bench, 1780)): "Whether there be any evidence, is a question for the Judge. Whether sufficient evidence, is for the jury." The difficulties commence with subsequent efforts to define "any evidence". Part of these difficulties, perhaps, lay in the function of the jury as it first developed when jurors were chosen because of their presumed knowledge of the facts of the case and the parties thereto, and were assumed to, and undoubtedly did, reach a verdict largely based upon their individual and collective knowledge of circumstances wholly unknown to the presiding judge. Illustrative of this are Chief Justice Vaughn's observations in a 1670 habeas corpus proceeding which challenged the validity of the punishment of members of a jury which persisted in returning a verdict contrary to the wishes of the court. (Bushell's case, Vaughn 135, 124 Eng. Rep. 1006, 1012.) In setting aside the ...