Appeal from the Circuit Court of Cook County; the Hon. JOSEPH
J. BUTLER, Judge, presiding. Judgment affirmed.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
Jack R. Rice, a minor nine years of age, by George Rice, his father and next friend, filed suit in the Circuit Court of Cook County against the Gulf, Mobile and Ohio Railroad Company and an engineer of one of its work trains. Dewey O. Bates, for damages for personal injuries. The action was submitted to the jury on charges of both negligence and wilful and wanton misconduct. The jury returned a verdict of not guilty as to the engineer. The railroad was found guilty and the damages were assessed at $115,000. The railroad's post-trial motion for judgment notwithstanding the verdict or in the alternative, for a new trial limited to the issue of liability only, was denied. A judgment for $115,000 was entered on the jury's verdict. Only the railroad prosecutes this appeal.
Defendant's railroad tracks run, in general, in a North-South direction through the village of Nilwood, Illinois. Morean Street, also known as Old Route 4 is the main street in Nilwood and runs in an East-West direction. There are pedestrian concrete crosswalks on both the North and South sides of Morean Street, up to and across defendant's tracks. The crosswalks were about 40 feet from either side of Morean Street. The railroad tracks consisted of a Northbound main and a Southbound main. To the West of the Southbound main, also running in a North-South direction, is a sidetrack, or a business track, which also crosses Morean Street and two dirt roads South of Morean, Chestnut and DuBois streets. This business track serves the Kime Elevator Company, which is located immediately West of the business track. The chute of the Kime Elevator Company stands about 180 feet to the South of the South crosswalk of Morean Street.
There is a switch at the South end of the business track permitting a train on the Southbound main to get on or off the business track. This switch is located 1182 feet South of the center line of Morean Street. The switch is equipped with a derail device which will derail any car that might otherwise roll from the business track and enter the Southbound main.
Sixteen railroad cars which had been delivered by defendant to Nilwood on April 18, 1957, were standing on the business track. There were four cars between the derail and the first crossing (DuBois Street); seven or eight cars between DuBois Street and the next crossing (Chestnut Street); and the remaining four or five cars between Chestnut and Morean streets. A work train, referred to as No. 1,127, consisting of a diesel engine, a gondola car, a clam shell or derrick-type car, another gondola and two cabooses, was located on the Southbound main track, South of the switch at the juncture of the business track and the Southbound main. This work train was engaged in picking up old rails and supplying new rails in the area.
A passenger train, travelling South was due to pass through Nilwood at approximately 3:19 p.m. Under the railroad regulations, the work train had to leave the main track ten minutes before the scheduled time of the passenger train. The train crew of the work train consisted of five men: defendant Dewey O. Bates, the engineer; James F. Chestney, the fireman; Leroy Holmes, the conductor; Robert Bull, the head brakeman; and John J. Killoran, the rear brakeman. The crew started to move the work train off the Southbound main track and onto the business track at 2:50 or 3:00 p.m. The procedure was begun by Killoran, the rear brakeman, throwing the derail switch so that the work train could go onto the business track. The two side streets and Morean Street were all open at this time. Bull, the head brakeman, gave the first signal to back up the work train onto the business track and up to the first "cut" of cars. Bates, the engineer, was on the West side of the train. Because of the curvature in the track, he could not see any of the other members of the crew out his window in the engine. Killoran, Bull and Holmes, the conductor, were all on the East side of the train. Chestney, the fireman, was on the East side of the engine. He passed the signals on to Bates. The stop signal was given when the first "cut" of cars was reached. These cars were then coupled to the work train by Killoran. Killoran then walked to the next crossing and again gave the backup signal to Bull and Holmes, who relayed it to Chestney, who informed Bates and the work train backed up to the second "cut" of cars. A stop signal was relayed in the same manner as the backup signal. The second "cut" of cars was coupled to the work train. Killoran then walked to the next crossing, Chestnut Street. Again, a backup signal was relayed and when the work train reached the last "cut" of cars, a stop signal was given and the coupling made.
At this point the engine was still on the main line. Killoran walked down to Morean Street and again gave a backup signal. The purpose at this point was to "shove" some of the 16 railroad cars, which had been sitting on the business track, North of Morean Street, uncouple them, and then pull the train forward to leave the crossing clear for vehicular traffic. Once Killoran reached Morean Street the backup signal was relayed in the manner described. The train backed up 3 or 4 car lengths. Killoran cut off 3 cars North of Morean Street and then gave the signal to move forward. This signal was relayed in the aforedescribed manner. The train then pulled ahead as close as it could to the derail switch. Killoran still continued to give the go ahead signal because the South half of Morean Street and the South crosswalk were still blocked. Killoran and Holmes both admitted that they did not know the capacity of the business track and therefore did not know how many cars would have to be "shoved" North of Morean Street in order to leave the street clear for vehicular traffic. Killoran also admitted that he did not care about the crosswalk and left it blocked. He only wanted to clear the street.
Because Morean Street was blocked, it became necessary to back the train up again and drop 4 or 5 cars North of Morean Street. Bates gave 3 blasts on the train whistle and rang the bell, the signal that he wanted to back up. There is some conflict as to whether the train whistle was sounded or not. Holmes gave Killoran a signal that more cars would have to be "shoved" North of the crossing. Killoran gave the backup signal and this was relayed to Bates. The train began to move back North. The train moved about 10 or 12 feet when Bull shouted: "My God. Look at there."
A "vicious stop" signal was given and the train came to an immediate halt. The plaintiff was just North of the grain elevator and came crawling out on the East side of the tracks from under the train. Bates, Bull, Holmes and Chestney all started running toward the boy. Donald Bacon, a farmer, who had stopped on the East side of the tracks during the movements of the work train, heard someone hollering for help and upon looking to the South, saw somebody laying beside the track.
A man from town, Mr. Starks, had reached the boy and was calling for an automobile. Bacon drove to where the boy was. Starks put the plaintiff in the truck and they drove off, picked up Mrs. Rice and then drove to a doctor in a neighboring town.
Several witnesses testified for plaintiff that they came to the Morean Street crossing around 3:00 p.m. and were unable to cross because there were train cars blocking the crossing. They all testified that after waiting some time, they drove to a dirt road crossing two blocks to the North and came back to Morean Street on the East side of the tracks. The crossing was still blocked when they came back to Morean Street.
The plaintiff's version of the facts is as follows: April 22, 1957, was a school holiday. Jack R. Rice, who lived East of the tracks, was permitted by his mother to visit a friend, David Bettis, who lived West of the tracks. David was not home, so he went to another friend's house, Doug Pittsford, one block West of the G.M. & O. tracks. Plaintiff and Doug played for a while. Jack had been told by his mother to be home at 3:00 p.m. He started for home at about 5 or 10 minutes before 3:00 p.m. When the plaintiff reached the Morean Street crossing there were railroad cars on the business track blocking the crossing. He went back and sat down in front of the Village Hall located on the South side of Morean Street and just West of the business track. He did not see any trainmen on the West side of the track. After 15 minutes he walked around the Village Hall and behind a shed just to the South. He then walked East toward the tracks and back North to the Morean Street crossing. He testified that there was a seven-foot opening between two cars about three feet South of the pedestrian crosswalk on Morean. He started to walk through it. The railroad cars to his right and South of him started to move and knocked him down. He thought that his feet were run over on the East rail. He testified further that he fell and began to crawl in a Southerly direction between the rails and under the cars. He stopped crawling when the cars stopped moving and then scrambled out on the East side of the track. He was immediately taken to a doctor and then to a hospital in Springfield.
Defendant contends that the judgment should be reversed or in the alternative that said judgment be reversed and the cause remanded for a new trial on the issue of liability only. Defendant's first argument is that the verdict and judgment in favor of the engineer also acquits the railroad. We cannot agree with this contention.
Defendant relies on the cases of Devore v. Toledo, Peoria & Western Railroad, 30 Ill. App.2d 409, 174 N.E.2d 883 (1961), and Larson v. Hines, 220 Ill. App. 594, (1921), for the proposition that the jury finding that the engineer was not guilty of negligence acquits the railroad. In Larson the plaintiff was killed when her horse-drawn buggy was trapped between two trains, one on the Eastbound track and the other, Westbound. The proximate cause of her death, appearing from the averments in all the counts of the complaint, was only the negligence in running and ...