Appeal from the Circuit Court of Lee County; the Hon. JAMES E.
BALES, Judge, presiding. Reversed and remanded in part, affirmed
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
Rehearing denied and opinion modified January 20, 1969.
MODIFIED OPINION ON DENIAL OF PETITION OF COMMUNITY UNIT SCHOOL DISTRICT FOR REHEARING.
Plaintiffs appeal from the entry of judgments on not guilty verdicts of the jury and from the denial of the post-trial motion. The case involves claims for wrongful death, and for funeral expenses under the Family Expense Act.
The case was tried under an amended complaint in which the defendants Marie J. Mullins, Executor of the Estate of Everett J. Mullins, Deceased, and the Community Unit School District 272, were charged only with willful and wanton misconduct. In separate Counts X and XI, plaintiffs sought recovery against the defendant School District only, charging it "was negligent in requesting Robert Enlow and Martin A. Cruse to perform services for the School District." The case against the Railroad proceeded under allegations of ordinary negligence. However, the original complaint in Counts III and IV had charged the Mullins and School defendants with ordinary negligence, but these Counts were dismissed on motion of the defendants.
The case involves a crossing accident in which there was a collision between the train of the defendant Railroad and a school truck being driven by defendant Everett J. Mullins, a janitor employed by the defendant School District, on September 20th, 1966. About 3:25 p.m. on that day, the janitor had asked the school principal for permission to use some of the eighth grade boys to load a drag or grader on the school truck. The principal testified that nothing was said about the boys doing anything other than load the drag on the truck; but he further testified that the janitor, Everett J. Mullins, was going to take the drag from the school playground to the road commissioner who lived across the tracks from the grade school in the Village of Eldena. The principal approached the eighth grade boys and told them that Mullins needed some help and asked if anyone wanted to help. Five of the boys raised their hands, including Martin Cruse and Michael Enlow who were then fourteen years old. After loading the "drag," the boys were riding in the back of Mullins' truck from the time the truck left the school grounds until the time of the accident.
Between the village and the school there were two gravel roads, one running parallel to the railroad tracks on the east side and another road which crosses the tracks. The railroad tracks run in a northwesterly-southeasterly direction. The only warning signals located at the crossing were wooden crossbuck signs. At the crossing, the gravel road upon which the Mullins' truck travelled turns west. The railroad line is approximately 2.3 feet above the surface of the roadway. The gravel road curves as it goes over the tracks at nearly a 70-degree angle. From the crossing you could see a half mile south along the railroad tracks. There was no obstruction to seeing a train coming from the south and the visibility was good from the gravel road and then west. Traffic at this crossing, as shown by a traffic count, was relatively light; and there was another crossing to the north which people could use going to and from school.
The truck approached the railroad crossing at a speed of approximately 10 miles per hour as the train approached the crossing from the south at approximately 45 to 50 miles per hour. A witness testified that as the truck turned toward the crossing she saw the train 165 to 200 feet south of the crossing. She further testified that the truck never changed speed to the point of collision. The engineer on the train testified that he saw the truck approaching the crossing when the train was one-quarter of a mile away from it.
The driver and all of the boys in the truck were killed as a result of the accident.
There was conflicting testimony from witnesses and from the train crew as to whether the whistle blew on the train as a warning. The train locomotive was running backwards. The brakes on the locomotive were applied when the locomotive was within a few feet of the crossing by the engineer at the direction of another crew member. The train stopped about 900 feet north of the crossing after the collision.
When the boys got in the back of the truck, three were sitting on the left side facing northerly and two were sitting on the right side facing southerly, but there was no testimony as to where Robert Enlow or Martin Cruse were sitting. One of the trainmen testified that none of the boys turned their heads towards the train until the split second before the accident, and as the truck started to cross the tracks the boys stood up in back and looked at the train just as it hit them. Another witness, Lola Fields, was looking at the boys as the truck approached the tracks and saw no movement by any of them to the very point of collision.
There was testimony that Mullins never turned his head to look either way and at all times was looking straight ahead. There was further testimony that "it looked as if Mullins was going to stop at any moment."
We will consider first the claim of plaintiffs that it was error to dismiss Counts III and IV of the original complaint charging ordinary negligence. This involves only the case against Mullins and the School District. Both Counts contain similar allegations, but Count III was for the damages as the result of the death and Count IV was for the funeral expenses. ...