APPEAL from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of Madison County;
the Hon. FRED P. SCHUMAN, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT: Louise McElligott, individually and as administrator of her deceased husband's estate, sued the Illinois Central Railroad Company in the circuit court of Madison County for damages arising out of a collision between plaintiff's automobile and one of defendant's trains at a railroad crossing in Belleville, Illinois.
The evidence disclosed the following: On March 4, 1960, about 9:15 P.M., the plaintiff, Louise McElligott, drove a 1959 Ford automobile, with her husband as passenger, north on 19th Street and collided with defendant's west-bound train. She suffered personal injuries and her husband died as a result of the collision.
The accident occurred in Belleville at a point where South 19th Street and defendant's track intersect at right angles. This crossing is in a residential area and concededly over a well-traveled street. Defendant acquired this right-of-way in 1853, which was 100 feet wide and measured 50 feet each way from the center of the rails. It consisted of a single track over which defendant operated its trains. Plats and exhibits admitted in evidence showed that there was no street south of the track in 1867 and in 1870. In fact, there was no evidence as to when the street was constructed but evidence did disclose that prior to it being paved it was a dirt road. In 1926, the city of Belleville, through a special assessment, had 19th Street paved to within four feet of the rails and paved the curbs and sidewalks to within two feet thereof. The defendant asphalted the four feet on each side of the rails. The city thereafter maintained the street, sidewalks, and curbs.
The evidence most favorable to the plaintiff indicated that Louise McElligott, driving north on 19th Street at about 15 miles per hour, observed a train headlight shining over a garage to her right, when she was about 30 feet from the crossing. There had been snow and ice on the ground for at least a week prior to the incident and, although the city had cindered the main thoroughfares, South 19th, including the crossing and its approaches, had not been cindered or salted and was covered with snow and ice and was slippery. As the train traveled, it was going slightly up grade at about 45 to 50 miles per hour and the automobile was proceeding on a slight down grade. Upon seeing the headlight, plaintiff applied and pumped the brakes, the car commenced sliding on the icy down grade and, although she turned the front wheels to the left, it continued to slide and collided with the train at approximately the center of the street about 10 feet from the front of the engine.
During the course of the trial the plaintiff introduced into evidence, over defendant's objection, Illinois Commerce Commission Rule 206, which provided that: "At every grade crossing where the duty of constructing or maintaining either the crossing proper or its approaches (or any part thereof) is by statute, by order of the Commission, or in any lawful manner, placed upon a railroad company, it shall be the duty of the railroad company to construct and maintain the crossing or approaches so that at all times they will be safe as to persons and property."
The trial court allowed plaintiff's Instructions No. 10 and 11 to be given to the jury. Instruction No. 10 was as follows:
"At the time of the occurrence in question there was in force in the State of Illinois a statute [Section 8 of An Act in relation to fencing and operation of railroads, also known as the Railroad Act, (Ill. Rev. Stat. 1961, chap. 114, par. 62)] which provided that:
`Hereafter, at all of the railroad crossings of highways and streets in this state, the several railroad corporations in this state shall construct and maintain said crossings, and the approaches thereto, within their respective rights of way so that at all times they shall be safe as to persons and property.'
If you decide that the defendant violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances and evidence in determining whether or not the defendant was negligent before and at the time of the occurrence."
That part of Instruction No. 11 necessary for our consideration, was in words as follows:
"The plaintiff claims that she was injured and sustained damage and that decedent was killed while she and decedent were exercising ordinary care, and that the defendant was negligent in one or more of the following respects:
"(a) In failing to sound the horn or bell on the engine when one-fourth of a mile from the crossing and in failing to keep sounding the horn or bell until the crossing was reached, contrary to a certain Statute of the State of Illinois.
"(b) In operating its train at an excessive rate of speed in view of the conditions then prevailing.
"(c) In failing to give adequate and timely warning of the approach of its train to the crossing in view of ...