APPEAL from the Circuit Court of Williamson County; the Hon.
JOHN H. CLAYTON, Judge, presiding.
MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Plaintiff appeals from an order of the trial court of Williamson County allowing defendant's post-trial motion for judgment in favor of defendant after the jury to which the case has been submitted failed to agree. The case was tried on two counts of the complaint, both of which were based on ordinary negligence and both of which alleged that plaintiff was in the exercise of due care and caution for his own safety and that of his property.
Defendant's decedent, who will hereafter be referred to as "defendant", the driver of the car which struck the rear end of plaintiff's car, died sometime after the collision, but not as a result of it, and before trial. Plaintiff was barred from testifying to anything prior to the death of defendant. (Ill. Rev. Stat., ch. 51, par. 2.) Other than the plaintiff, the only witness to the actual incident was the owner of and passenger in the car driven by defendant.
Plaintiff called as his own witness the passenger-owner, who testified that she and defendant were driving in a southerly direction toward Herrin, Illinois. As they were driving along, defendant was looking down and listening for some noise in the back end of her car. As they were driving, they were talking, and she looked up and saw the tail lights of plaintiff's car about a block in front of them. She thought the car was moving, but she did not know how fast. When she looked up again, she saw that plaintiff's car was stopped, and she said, "Jimmy, look out. That car stopped." Defendant, who was still looking down at that time, hit for the brake, but her car struck the rear of plaintiff's car. They were traveling about thirty miles per hour and were two or three car lengths behind plaintiff's car at this time. She then identified a photograph looking south on Park Street which showed three sets of railroad tracks with a railroad warning sign facing southbound traffic. The crossbuck sign read "Railroad Crossing". Just beneath that sign appeared the words, "3 Tracks". Just under that sign were two red flasher lights and under these lights appeared the language, "Stop On Red Signal". She marked the third southernmost track as the place of the accident, but later said she was not sure whether the accident happened on the second or third set of tracks.
She further testified that there were no brake lights or signal lights on the plaintiff's car when she first saw it, and there were no brake lights or stop lights exhibited at the time of the collision.
Defendant contends in response to the plaintiff's appeal that plaintiff failed to prove that he exercised proper care for his own safety and therefore the trial court properly allowed defendant's post-trial motion and entered judgment in favor of the defendant. We agree.
• 1 There is no showing of plaintiff having given any signal that he was going to stop; no showing of any reason why he stopped; no showing of precaution in looking in the rear view mirror, or that the car was so equipped; no showing that a traffic condition such as to justify a stop on the highway existed; and no showing of careful habit evidence on the part of plaintiff. In fact, we find no evidence tending to prove due care by the plaintiff.
• 2, 3 As stated in Government v. Illinois Central R.R. Co., 34 Ill. App.2d 30, 180 N.E.2d 213:
"A motion for directed verdict should be allowed if * * * there is a total failure to prove one or more essential elements of the case * * * here, the element of due care by the decedent. The same rule is applicable in passing upon a motion for judgment notwithstanding the verdict * * *. There must be some evidence tending to prove due care by the decedent. The burden is on the plaintiff. Due care cannot be presumed from the mere fact of the happening of an accident and a consideration of the human instinct of self-preservation. Liability cannot rest upon imagination, speculation or conjecture, nor upon a choice between two views, equally compatible with the evidence, but must be based upon facts established by evidence fairly tending to prove them. If the record is without evidence of due care by the decedent, the decedent was necessarily guilty of contributory negligence as a matter of law, and the court should instruct the jury to render a verdict for the defendant. [Citation.]"
• 4 Plaintiff cites numerous authorities to the effect that whether a plaintiff was guilty of contributory negligence which was a proximate cause, is a question for determination by the jury, and contends that plaintiff's conduct as shown by the evidence presented was not so clearly and palpably negligent that all reasonable minds would agree that he did not exercise that degree of care and caution which reasonable, ordinary and prudent persons would exercise under the same circumstances. The question here however, is not whether all reasonable minds would conclude that plaintiff was guilty of contributory negligence, but whether there was a sufficient showing of due care on his part or a freedom from contributory negligence on his part. The burden of proof to so show was on plaintiff and it has not been met. Plaintiff contends that our holding in Smith v. Stopher, 125 Ill. App.2d 378, 261 N.E.2d 16, dictates a reversal of the case at bar. In that case the jury resolved the facts in favor of the ten-year-old plaintiff. Our disposition of the question of whether there was sufficient evidence of freedom from contributory negligence of the plaintiff was disposed of in the next to last paragraph of the opinion (125 Ill. App.2d 387, 261 N.E.2d 20) and was obviously based on the age of the plaintiff. We do not consider our holding in Smith here applicable. Here there is no evidence from which it can be inferred that plaintiff was properly or justifiably stopped on railroad tracks in the proper lane of traffic.
• 5 It is further contended by the plaintiff that the court erred in striking certain testimony. We note that this issue was not raised in the plaintiff's post-trial motion, and is accordingly precluded from urging it for the first time on appeal. Chap. 110, Sec. 68.1(2), Ill. Rev. Stat.; Johnson v. Princeville Comm. H.S. Dist. 206, 65 Ill. App.2d 487, 212 N.E.2d 755.
For the foregoing reasons the judgment of the Circuit Court of Williamson County is affirmed.