APPEAL from the Circuit Court of Champaign County; the Hon.
CREED D. TUCKER, Judge, presiding.
MR. PRESIDING JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
The trial court directed a verdict for defendants at the close of plaintiffs' evidence in an action for indemnity, and plaintiffs appeal.
Following the tender of the defense to defendants, which was refused, the plaintiffs settled a personal injury action alleged to have resulted from the obstruction of the view of an automobile driver at the intersection of the railroad tracks and a street in Leroy. The obstruction was a trailer owned by Kenworthy, who had parked or left the trailer at the direction of and with the permission of McDowell, who owned the property adjacent to the property of the plaintiffs.
The plaintiffs' right-of-way and tracks passed through Leroy in a northwest and southeast direction traversing Lots 2, 3 and 4 in Block 21. Plaintiffs owned that part of Lot 4 lying north of the center line of the main tracks and had a right-of-way 30 feet wide across Lots 3 and 2. West Street abuts the west side of Lot 4 and Pine Street abuts the north side. The tracks cross West Street at a point slightly south of the intersection of West and Pine Streets.
On the 5th of February, 1967, there was a trailer approximately 32 1/2 feet long and 8 feet wide parked on the easterly part of Lot 4 with its rear end 11 or 12 feet north of the north rail of the railroad. This trailer parked in this position so obstructed the view of one proceeding west on Pine Street that according to one witness, Mr. Roy Markham, the view of the railroad was blocked until the front bumper of a vehicle was 5 feet from the track. It would appear that if the trailer were not in this position, one would have a view of the railroad for a substantial distance.
There is sufficient testimony that the whistle or horn of the train was being properly sounded for the crossing for an appropriate distance, that the headlight of the train was burning and that the bell was ringing. So far as the record shows, there was no negligence on the part of the railroad except the failure to keep its right-of-way clear of obstructions within 500 feet of the crossing. The only obstruction mentioned in the record is this trailer truck.
The railroad, believing that it was exposed to liability by reason of a failure to conform to a non-delegable statutory duty to keep its tracks clear, settled the case with the injured plaintiffs for about $25,000, and seeks recovery from the owner of the trailer, and also from the owner of adjoining land who directed the owner of the trailer to park the trailer on railroad property under the belief that the particular area was his own land.
The complaint in two counts alleged that Kenworthy wrongfully parked the trailer, or that he unlawfully and wrongfully parked the trailer without plaintiffs' consent upon the land of the plaintiffs in such a way as to block the view of motorists at the crossing, and that injury to the motorist resulted. Each count alleged that the defense of the original action for personal injuries was tendered to defendants but was refused. Kenworthy denies all the allegations.
A count directed against the defendant, McDowell, alleged that the latter unlawfully and wrongfully informed Kenworthy that McDowell was the owner of the land and that Kenworthy might park his trailer on the land described, and that the latter did park there. McDowell denies the several allegations.
Each defendant filed affirmative defense that plaintiffs were active tortfeasors not entitled to indemnity.
A conductor, two brakemen and two engineers employed by plaintiffs testified that they had seen the trailer, or similar trailers, parked in the same or similar locations from time to time over periods varying up to several months. Each testified that he did not know the lines establishing the property or right-of-way of the plaintiffs. No one of them had made a complaint or report to any railroad superior or officer.
The testimony of defendants is that the trailers were parked upon the authority of McDowell as a matter of Kenworthy's convenience upon an intermittent rather than a continuing basis. There is a suggestion that the parking of the trailers was incident to McDowell's repair of Kenworthy's tractors. The record shows that in consideration of such parking, Kenworthy was to mow the weeds and was to remove a tree for McDowell.
The trial court filed a memorandum concluding that the several trainmen were agents of the plaintiffs, that it was incumbent upon such employees to notify appropriate railroad authorities of obstructions to vision and determined that plaintiffs had constructively discovered the condition at issue, done nothing to correct or to remove the danger, and that such failure constituted acquiescence in the acts of defendants. Having decided that negligence or fault of plaintiffs was of the same quality or character as that of defendants, the court directed a verdict for defendants under the rule of Pedrick, 37 Ill.2d 494, 229 N.E.2d 504.
The trial court's reasoning was based chiefly upon an analysis of Chicago & Illinois Midland Ry. Co. v. Evans Const. Co., 32 Ill.2d 600, 208 N.E.2d 573, and emphasizes the phrase "unless after discovery of the danger he acquiesced in the nature of the condition". The court says that there is no argument taking the plaintiffs' evidence based on the testimony of all members of the ...