Appeal from the Circuit Court of Cook County; the Hon.
BENJAMIN NELSON, Judge, presiding. Judgment reversed and
MR. PRESIDING JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
Harry McIntyre, plaintiff, brought this personal injury action to recover damages occasioned by the alleged negligence of the defendant, The Belt Railway Company of Chicago, in the operation of its diesel switch engine at a railroad crossing at grade. Defendant, Peter Hanik, was dismissed as a party to the cause after the jury was selected. The jury rendered a verdict for the plaintiff, upon which the court entered the judgment from which this appeal is taken. No questions are raised on the pleadings.
The plaintiff, Harry McIntyre, was injured on April 24, 1961, at about 7:00 p.m., when his automobile was struck by defendant's switch engine at a railroad grade crossing near 67th Street and Lavergne Avenue, in the Village of Bedford Park, Illinois. Plaintiff had left his gasoline station, at 7400 South Cicero Avenue, drove North on Cicero to 67th Street, turned left and went West on 67th Street to Lavergne, a distance of about two blocks. At Lavergne there is a stop sign and a railroad cross-buck sign. Plaintiff stopped his automobile and then proceeded to turn right to go Northbound on Lavergne. There is a railroad crossing consisting of four sets of tracks crossing Lavergne at right angles in an East and West direction. As one travels Northbound on Lavergne, the first set of tracks is approximately ten to fifteen feet North of 67th Street. The second set of tracks is approximately fifty feet North of 67th Street. The third set of tracks is about five feet North of the second set of tracks, and the fourth set of tracks is about ten feet further North of the third set. Both the second and third set of tracks originate in a factory on the East side of Lavergne Avenue, and each set emerges from a different entrance.
The area where the accident took place is predominately industrial and commercial, with factories on both sides of Lavergne Avenue. The defendant's diesel locomotive involved in this collision was being operated on the third set of tracks, and was emerging in a backward direction from the factory entrance on the East side of the street. As the defendant's locomotive emerged from the factory, it was at first heading directly South, then the third set of tracks curves to the West, and by the time the locomotive emerges from the curve to the West, it is heading almost due West as it reaches Lavergne Avenue. The weather conditions that evening were poor it was very dark and cloudy, and it was raining. There were no street lights at the intersection of 67th and Lavergne. There were no lights in the area of the third set of tracks crossing Lavergne Avenue, nor any lights emerging from the factories. There were no crossing gates, flashing lights, flagmen or guard towers, where the tracks cross Lavergne Avenue, nor were there any pedestrians present at the time of the collision.
As the plaintiff turned to go North on Lavergne, he was following a line of approximately twelve cars going in the same direction, and he was followed by about the same number. Plaintiff was traveling about five to ten miles per hour as he approached the third set of tracks. He saw only the headlights of cars going North and South across the tracks. When the front portion of plaintiff's automobile was on the third set of tracks, his vehicle was struck on the right side by the defendant's locomotive. Members of the locomotive crew testified that the locomotive was traveling two to four miles per hour; that the bell was ringing; that the headlight was on bright; and that the engineer blew the whistle several times as they approached the crossing. All five members of the locomotive crew were riding on the locomotive at the time of the collision.
The evidence adduced by plaintiff at the trial concerning the collision disclosed that he was familiar with the crossing, since he had traveled over the railroad intersection over one hundred times in the past, but had never seen a train or locomotive operating on the tracks prior to the accident. Because it was raining, all the windows of his car were up. The windshield wipers were on as well as the defroster and heater. He heard no bells, whistles or horns, nor saw any flashing lights, and when he reached the third set of tracks he was struck by something "like a ton of bricks." Plaintiff was dazed and did not recall what happened next. When he awoke, he was in the hospital.
On cross-examination, plaintiff testified that the muffler of his car was defective and that it made a purring sound. Defense counsel impeached the plaintiff as to the condition of the muffler as follows:
"Q. Would you admit that the muffler was noisy that night?
"A. Not so noisy that I couldn't hear a train. As a qualified mechanic I would say it was more like a purr than a roar. . . .
"Q. You mean your muffler purred?
"A. It had a little pin hole in it. . . .
"Q. I see. Calling your attention to this deposition that you gave . . . I will ask you if this question was asked and if this answer was given:
"`Q. During the period of time then that you moved from track No. 2 to track No. 3, did you look to your left or to your right?
"`A. I was looking to my left. I heard got a, got a noisy muffler on the car because the muffler was shot. So the muffler was making noise ...