Appeal from the Circuit Court of Madison County, Third
Judicial Circuit; the Hon. JOSEPH J. BARR, Judge, presiding.
This action was brought to recover damages occasioned by the alleged negligence and/or willful and wanton misconduct of defendant-appellant, Norfolk and Western Railway Company, a corporation, defendant, Robert L. Wetz, Sr., the engineer of the train in question, and defendant, Burton Jones, the fireman of the train in question, in the operation of a passenger train at a grade crossing. Defendant's, Burton Jones, motion for a directed verdict was granted at the conclusion of plaintiffs' case. The jury rendered a verdict in favor of defendant, Robert L. Wetz, Sr., and against all plaintiffs on all counts of plaintiffs' complaint directed against that defendant. The jury rendered verdicts for each plaintiff only on the counts of the complaint alleging negligence against defendant-appellant, upon which the court entered judgments and from which this appeal is taken.
Defendant-appellant's motion for judgment notwithstanding the verdict, directed to plaintiff, Deborah Baker and Robert H. Baker, her father and next friend, was denied, but the court ordered a new trial in the case of Deborah Baker, by her father and next friend, Robert H. Baker, against defendant-appellant on the issue of damages only. Deborah Baker has filed a petition for leave to appeal from that order.
Plaintiffs' complaint alleged that defendant-appellant was negligent, among other things, in that "it failed to provide flares, lights, bells or gates at said crossing." The jury was subsequently instructed in the language of that allegation.
This accident occurred a short distance north of Granite City, Illinois, on March 8, 1966, at about 7:05 p.m., at the intersection of defendant's main northbound track and Maryville Road when a car being driven by Dixie Baker in a northerly direction on Maryville Road over said crossing was struck by a northeastbound passenger train owned and operated by the defendant, Norfolk and Western Railway Company. The track in question runs in a northeast south-southwest direction and Maryville Road runs in a generally north-south direction. The grade crossing in question consists of two tracks, one being the defendant's northbound main track and one being the defendant's southbound main track. The protection afforded at the grade crossing in question was the standard crossbuck signs, saying, "Railroad Crossing." Some 89 feet west of the grade crossing in question is another grade crossing consisting of two tracks used by the New York Central Railroad Company and the Gulf, Mobile and Ohio Railway Company which grade crossing is also protected by the standard crossbuck signs, saying, "Railroad Crossing."
Plaintiffs and plaintiffs' decedents lived approximately six-tenths of a mile south of the grade crossing near Granite City and had lived at this location for five years, during which time Dixie Baker, deceased, the driver of the automobile in question, drove over the crossing in question about once a week. At the time of the accident it was dark and clear.
When the deceased, Dixie Baker, left home, she was driving a 1966 Chevrolet. The plaintiff, Deborah Baker, fourteen years of age at the time of the accident, was seated in the right-hand front seat. The deceased, Robin Baker, nine years of age at the time of the accident, was seated in the rear seat of the car on the left-hand side behind her mother, Dixie Baker.
No one knows what route Dixie Baker, deceased, followed to get to the grade crossing in question since Dixie Baker and Robin Baker were killed as the result of the accident, and Deborah Baker suffered retrograde amnesia. However, Dixie Baker would normally go north on Vincent Street a few hundred feet, then turn left on Binney Street to Route 203 and then turn right onto Route 203 and go in a northerly direction on Route 203 to Maryville Road and then turn left onto Maryville Road, going in a northerly direction up to the grade crossing in question.
Route 203 runs parallel with and East of the northbound main track of defendant. The distance between the most westerly edge of Route 203 and the most easterly track of the northbound main track of defendant, the track that the train in question was on at the time of the accident and the first track that Dixie Baker, deceased, would have come to, measured on Maryville Road, was 126 feet.
The accident occurred a few minutes after Dixie Baker, deceased, Robin Baker, deceased, and Deborah Baker left their home. The only witness that saw plaintiffs' automobile after it left home was the engineer of the train, Robert L. Wetz, Sr., who saw the automobile just in the last split second and just as the automobile was going across the track in front of the train. The point of impact to the automobile was to the left rear fender, six feet from the rear end of the car.
Plaintiffs' decedents, Dixie Baker and Robin Baker, died as a result of the accident. Dixie Baker was 32 years of age and Robin Baker was 9 years of age at the time of their deaths.
Appellant first contends that plaintiffs' complaint does not allege facts from which it could be concluded that the Maryville Road Crossing was extrahazardous, and therefore does not state a cause of action which would support a judgment in plaintiffs' favor.
Paragraphs 3 through 7 of plaintiffs' complaint state:
"That east of the tracks in question on the south side of Maryville Road, there was located within close proximity of said tracks, poles and other obstructions which interfere with the view to the south of one crossing said track as he proceeds westerly upon said Maryville Road, all of which the Defendant, its agents or employees, knew, or, by the exercise of reasonable care, should have known.
"That on said date, and for a long time prior thereto, there were no signals, flashers, lights, bells or watchmen kept at such crossing, all of which the Defendant, its agents or employees, knew, or by the reason of due care, should have known.
"That on said date, and for a long time prior thereto, said Maryville Road crossed the aforesaid railroad tracks at an acute angle, which the Defendant, its agents or employees, knew, or, by the reason of reasonable care, should have known.
"That on said date and prior thereto, said tracks were situated at an elevation considerably higher than the elevation of Maryville Road, thereby requiring automobiles crossing said tracks to approach same at a steep incline, which the defendant, its agents or ...