APPEAL from the Circuit Court of Cook County; the Hon.
ARCHIBALD J. CAREY, JR., Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Richard Herglund (plaintiff) sued New York, Chicago and St. Louis Railroad Company, an Illinois corporation also known as Nickel Plate Railroad but now known as Norfolk and Western Railway Company (Railroad) for negligence. Plaintiff seeks damages individually for his personal injuries and also as administrator for alleged wrongful death of plaintiff's late wife, Glenda Sue Herglund. The cause involves a train and automobile collision at a grade crossing in Paxton, Illinois.
A jury trial was held after which verdicts were returned against plaintiff in both capacities. The jury also returned affirmative answers to three special interrogatories: "1. Was decedent, Glenda Sue Herglund, guilty of negligence which proximately contributed to cause the occurrence in question? 2. Were the plaintiff, Richard Herglund, and the decedent, Glenda Sue Herglund, engaged in a joint enterprise at the time of the occurrence? 3. Was plaintiff, Richard Herglund, guilty of negligence which proximately contributed to cause the occurrence in question?"
The trial court entered judgment on the verdict in favor of the Railroad, from which plaintiff appeals. A statement of the pertinent facts is essential.
Paxton, Illinois, a town of some 4000 people is located in Ford County. Railroad operates a main track traversing Paxton in an east-west direction. Going to the west, the main track and another closely parallel set of tracks cross, in order, Washington Street, Union Street, Vermillion Street, State Highway 45 and Market Street. The train in question, operated by Railroad personnel, was a freight train proceeding west on the main track which is to the south of the other tracks. Some 800 feet to the east, the main track curves to the north. The occurrence took place on May 22, 1963, at about 4:45 p.m. Daylight Savings Time, or 3:45 P.M. Railroad or Standard Time. The weather was sunny and clear.
The crossings at State Highway 45 and at Market Street are equipped with signal flashers to warn motorists. The crossing at Vermillion is protected only by wooden crossbuck signs which are north and south of the tracks. The southern crossbuck, which is visible by northbound motorists, is placed some 33 feet south of the main track and nine feet east of the east side of the Vermillion pavement. At a point on Vermillion Street 200 feet south of the main track, the track is three feet over the grade of Vermillion. At a point 25 feet south of the main track, it is one and one-half feet over the grade of Vermillion. Otherwise expressed, the grade percentage from a point 25 feet south of Vermillion Street is six per cent. The train involved in this occurrence was made up of three diesel units, each some 15 feet high and 44 freight cars. The tracks add about five inches to the height of the locomotives. The train was operated by a crew of five Railroad personnel. An engineer controlled the train from the north side of the first diesel unit. A fireman was stationed on the south or left side of the first diesel. A brakeman was seated just behind the fireman. A conductor was stationed in the second diesel. There was a flagman in the caboose, some 2500 feet from the front of the train.
We will next attempt to describe the physical aspects of the crossing although that can be best shown by the photographs and a scale survey received in evidence. Vermillion Street is a 20 foot street with bituminous paving. Looking to the right, or to the east, there are a series of wooden bins and buildings, all owned by the Railroad. The first three of these are from 22 to 34 feet south of the main track and from 14 to 55 feet east of Vermillion. Going farther to the east, there is a one-story frame structure about 32 feet south of the track and some 62 feet east of Vermillion. Next in line is a one-story building about 26 feet south of the track and approximately 100 feet east of Vermillion. There are additional frame structures used by the Railroad located farther to the east. The next building is 26 feet south of the track and 128 feet east of the pavement. This is followed by a one-story building 25 feet south of the track and 175 feet east of the pavement. The last building is 25 feet south of the track and almost 200 feet east of the pavement. There are no trees north of any of these buildings.
Plaintiff testified that on the date of the occurrence his view to the east was restricted to 30 or 40 feet by the presence of two or three cars and two trucks which were parked between the Railroad buildings and the main track to the east of Vermillion. Plaintiff indicated the location of these vehicles on the scale survey. This shows two cars parked parallel to the main track north of the Railroad properties, next to the east a truck parked diagonally and further to the east another truck parked parallel to the tracks. Plaintiff testified that these vehicles were approximately ten feet south of the tracks. He described one truck as having a box-like structure. He described the other truck as having a flat bed with a rack on it. A photograph introduced in evidence by plaintiff shows two automobiles and two trucks parked between the tracks and the Railroad property. These trucks agree with plaintiff's description. This photograph was taken on September 14, 1963, close to four months after the occurrence. There is evidence by a Railroad employee that this photograph portrays the cars parked in their customary manner.
However, there is testimony by four Railroad employees, including three members of the train crew, that no cars were parked in this area on the date in question. This is corroborated by Railroad employees who worked in the buildings in question. Their testimony is to the effect that only two employees ever parked their cars south of the tracks and that both of them had left work and removed their cars prior to the accident. There is also testimony from three members of the train crew and from a truck driver employed by the Railroad, that only one truck was parked in the area in question. This truck was described by Railroad employees as being approximately eight to nine feet in height.
As the crossing is approached from the south, looking to the left or west, there is a paved road running east and west parallel to the main track and approximately ten or 12 feet south thereof. This road runs east to a T-shaped intersection with Vermillion. There are three trees located south of the road and about 45 feet south of the main track. A wooden pole is situated approximately halfway between the road and the railroad tracks, some 65 feet west of Vermillion. There is a one-story frame house some 48 feet south of the track.
Plaintiff and his wife were both young people, then approximately 20 years old. Plaintiff was stationed at an Air Force Base some ten miles from Paxton. The deceased was employed in Paxton at a location south of the railroad track and slightly east of State Highway 45. Plaintiff drove from the Base to the decedent's place of employment. The automobile was jointly owned by plaintiff and decedent. At about 4:30 P.M. Daylight Time, she entered the automobile and they proceeded toward their home which was north of the railroad crossing. Plaintiff drove east to Vermillion Street then made a left turn and drove north on that street toward the crossing. Plaintiff testified that he had taken this route some two or three times a week for a period of two to three months before the fatal accident. Plaintiff had previously seen only one train at the crossing; in March or April of 1963. This train was going east and had crossed Vermillion Street when plaintiff was about a block south.
Plaintiff testified that when he was some half block south of the crossing, he drove at approximately 25 miles per hour. Plaintiff first looked to the right when he was 25 feet south of the crossing. This would place his automobile at that time some eight feet north of the crossbuck. When plaintiff looked right, he saw only the buildings above described, two trucks and two or three automobiles. At that point, he could see from 30 to 40 feet down the tracks in an easterly direction. At that time, plaintiff had reduced his speed to some 15 miles per hour and he had his foot on the brake.
Plaintiff looked right for about one-half a second or so and then looked left. At that time, he was approximately 15 feet south of the main track. He testified that here he could see 50 to 75 feet down the track looking to the left or in a westerly direction. Plaintiff could see nothing on the track. He put his foot on the gas because of the grade. Plaintiff then looked to the right for the second time. At that time, the front end of his automobile was on the track and his speed was some five to ten miles per hour. Plaintiff testified that he did not hear anything at that time. The train struck the automobile instantly after plaintiff had looked to the right for the second time. Plaintiff was wearing sun glasses but they did not obstruct his vision. Plaintiff testified that his window was down at that time. He did not know if his wife's window was open or closed. The deceased was sitting in the front seat next to plaintiff. As a result of the impact, plaintiff's wife was instantly killed and plaintiff suffered personal injury.
Plaintiff testified that he did not hear a whistle or bell from the train. Furthermore, he testified that he did not hear the train. When plaintiff had previously seen a train at this crossing, he had heard the train from a distance of perhaps a block away. At the trial plaintiff testified that the car radio was not on. However, on his deposition, plaintiff had testified that the car radio was on and that he was listening to music, which ...