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Merchants Nat. Bank v. Elgin

MARCH 23, 1970.

MERCHANTS NATIONAL BANK OF AURORA, AS ADMINISTRATOR OF THE ESTATE OF HAROLD E. SECKMAN, DECEASED, PLAINTIFF-APPELLEE,

v.

THE ELGIN, JOLIET & EASTERN RAILWAY COMPANY, AN ILLINOIS CORPORATION, DEFENDANT-APPELLANT, AND EDWARD L. SAK, JR., ADMINISTRATOR OF THE ESTATE OF MARILYN J. SAK, DECEASED, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County; the Hon. JOHN S. PETERSEN, Judge, presiding. Affirmed. MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.

Rehearing denied and opinion modified April 24, 1970.

The plaintiff, as Administrator of the Estate of Harold E. Seckman, Deceased, sued the defendant, E.J. & E. Railway Company, and the Administrator of the Estate of Marilyn J. Sak, Deceased, the driver of the vehicle in which Seckman was riding, to recover damages resulting from a crossing accident. The jury found against both the railroad and the administrator of the host driver and awarded damages of $250,000 to plaintiff.

Only the railroad appeals from the judgment entered on the verdict, claiming that it was not negligent in the operation of its Train No. 6, that the sole proximate cause of the collision was the negligence of the driver of the vehicle, and that it was prejudicial error to permit an expert to testify to the alleged inadequate protection at the crossing. Reversible error is also claimed in the instructing of the jury.

The collision between a southbound freight train and a westbound pickup truck with a mounted "camper" occurred on October 30th, 1967, about 5:30 p.m. at the 143rd Street crossing of the railroad, one mile north of Plainfield, Illinois. The issue of defendant's negligence was submitted to the jury with the particular allegations charging failure to install adequate visual, physical and audible warning devices at the 143rd Street crossing, operation of the train at excessive speed, failure to apply the brakes, failure to keep a proper lookout and failure to blow a whistle through the crossing.

Inasmuch as the defendant claims error in the refusal to direct a verdict, the parties concede that the case is to be approached under the Pedrick rule (37 Ill.2d 494, 510, 229 N.E.2d 504 (1967)) in the aspect of the evidence most favorable to the plaintiff. We summarize the evidence in convenient headings with this in view.

Evidence of the physical aspects of the crossing.

143rd Street is a two-lane blacktopped county highway running easterly and westerly. It intersects the main line of the railroad at slightly more than a right angle on the approach to the tracks from the east going west. The speed limit on 143rd Street in the area in question is 65 miles per hour. It is flat for some 900 feet east of the crossing.

The railroad tracks are straight, and run generally north and south. On the easterly approach to the crossing, there is a county highway sign on the north side of the road approximately 900 feet east of the crossing, marked with a black "X" and "RR"; the pavement east of the crossing has a painted warning. The crossbucks are aluminum, covered with a retroflecting material. There was testimony that such material, when new, reflects light 180 times better than white paint; that because of the age of the application about 86% of the original reflection was still retained; and that dirt would reduce the reflection to an undetermined degree.

There were no gates or flashers.

Evidence related to visibility.

The weather was described variously as raining, drizzling, a little foggy, and misty.

There were no streetlights focused on the crossing. Visibility at the crossing was described by various witnesses as dark due to the heavy overcast and approaching sunset, halfway between bad and good, fairly poor, hazy, and almost dark.

Factory buildings in the area were lighted from the outside and in the parking areas, and there was testimony that the crossing itself, with no lights, appears to get darker than it would when the lighting was material and constant. Lights of trains would be horizontally aligned with building lights.

There was testimony of a survey of sight distances made on February 5, 1968, offered by the railroad, to the effect that if a vehicle was some 700 feet east of the railroad crossing on 143rd Street there would be an unobstructed view to 452 feet north of the crossing along the tracks, increasing to 798 feet when the vehicle would approach to 200 feet east of the crossing. The testimony purported to take account of the buildings in the area and certain boxcars which were on a factory siding 600 feet north of the crossing as indicated on the date of the accident. On cross-examination, the witness who testified as to the survey conceded that the visibility distance would apply at night "unless there was an obstruction like fog between the vehicle and the train." The sight line distances were computed in back and in front of the boxcars on the siding.

Aerial photographs of the area were admitted with the location of buildings, the positions of the vehicle and of the train, and boxcars on sidings indicated. Photographs of the area and buildings were introduced which had been taken both in the daytime and at night.

There was testimony that the crossing signs reflected well with the bright lights of an approaching vehicle, but with normal lights, "they were just a little low although you could see it."

In furtherance of its theory that there were distracting conditions affecting visibility as well as the physical sight distances, plaintiff presented testimony that there was a cut switch train of 8 cars to the south of the crossing; and that on the siding some 1,000-1,680 (depending on conflicting testimony) feet north of the crossing, in the same direction as defendant's Train No. 6 was approaching, there was a working switch train with headlights, gyrolight, whistle and 8 cars, which a part of the conflicting testimony indicated would have been visible to the Seckman vehicle; and that on a siding for the Fleischmann factory, which building was located about 384 feet east of the crossing, there were 3 parked boxcars.

Evidence related to the "camper" and its occupants.

Marilyn J. Sak was the driver of the camper on this day under a car-pool arrangement. 143rd Street route had been taken for several weeks prior to the accident, but this was a temporary measure due to construction work on the route usually taken. There was testimony as to her careful habits.

There was testimony of Seckman's careful habits, additionally, with further evidence that he had a perforated right eardrum which affected hearing in that ear.

Plant guards at the Fleischmann factory, stationed at a guardhouse some 528 feet east of the crossing, testified that they watched the taillights of the camper all the way to the crossing, that no brake lights went on, and that the camper never changed speed or swerved. They described the camper as being 459 to 560 feet east of the crossing when they first saw it, traveling at 35 to 60 miles per hour.

The engineer of Train No. 6 was on the right side of the cab and did not see the camper prior to the impact; however, the head brakeman, on the left side of the engine cab, testified that he first saw the camper when it was about 500 feet east of the crossing and at a time when the locomotive was about 250 feet north of the crossing. The camper was then going between 50 and 60 miles ...


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