APPEAL from the Circuit Court of Cook County; the Hon. HARRY
S. STARK, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
This is an appeal from a consolidated personal injury and property damage action arising out of a collision between a diesel locomotive and an oil truck at U.S. Steel South Works in Chicago, Illinois. A jury trial in the circuit court of Cook County resulted in a verdict for David Couillard against the Elgin, Joliet and Eastern Railway Company and United States Steel Corporation, an a verdict for B & L Cartage Company against Elgin, Joliet and Eastern Railway Company. The trial court entered judgment on both verdicts.
Defendants present four issues for review. They contend that (1) plaintiff David Couillard was guilty of contributory negligence as a matter of law, (2) it was reversible error to refuse to submit defendants' instruction to the jury which would have permitted the jury to consider Couillard's alleged violation of a statute on the issue of his due care, (3) it was error to refer to defendants' failure to call a witness during argument and it was error to read answers from interrogatories during closing argument, (4) it was error for the trial court to exclude Couillard's testimony as to his customarily followed procedure in approaching and crossing railroad tracks.
B & L Cartage (B & L) filed a two-count complaint against the Elgin, Joliet and Eastern Railway Company (E.J. & E.) for property damage to its tractor-trailer. Count I alleged that the E.J. & E., while operating a locomotive, was negligent in failing to keep a proper lookout, proceeding at an excessive rate of speed, failing to maintain its brakes in proper working order, and failing to abide by a stop sign. Count II alleged that the E.J. & E. operated its locomotive in a wilful and wanton fashion. David Couillard, who was a truck driver employed by B & L Cartage company at the time, filed a two-count complaint against the E.J. & E. and United States Steel Corporation for personal injuries sustained in the collision. Count I alleged that the E.J. & E. was negligent in (1) operating its locomotive in a negligent manner, (2) failing to give any warning signals to Couillard, (3) failing to stop the locomotive when danger to Couillard was imminent, and (4) failing to keep a proper lookout. Count II alleged that U.S. Steel was negligent in (1) ordering Couillard to stop with a portion of his vehicle on a railroad track, (2) failing to warn Couillard of the approaching locomotive, (3) failing to keep a lookout for the approaching locomotive, and (4) requiring entrants to U.S. Steel's premises to do certain acts which U.S. Steel knew or should have known would be dangerous to such persons. The complaints further alleged that defendants owed a duty to plaintiffs, that defendants' negligence was the proximate cause of plaintiffs' damages, and that plaintiffs were exercising due care.
At trial the following evidence was adduced. On the night of March 13, 1965, David Couillard was delivering a load of fuel oil to the U.S. Steel South Works plant. He was driving a semi-trailer rig, which was approximately 52 feet in length. Couillard had been employed by B & L Cartage as an oil truck driver for the 5 years preceding the accident. During this time he regularly delivered oil to the plant 3 nights a week.
As was his customary procedure, Couillard approached the plant traveling east on 86th Street, a public street that ended at the gate of the South Works plant. Couillard arrived at the plant at about 11:30 P.M. and stopped his rig at the gate opposite the guard shanty. While remaining in the rig he supplied some requested information to Ernest Black, the U.S. Steel plant guard. After obtaining the information, Black told Couillard, according to Couillard, "to pull up so he could get my trailer plates," which were at the rear of the trailer. Couillard drove his rig forward 40 to 45 feet and stopped with his semi-trailer straddling a railroad track. Couillard testified that as he was pulling the rig up he was looking into his left mirror to see when the end of his trailer came even with the guard shanty. While he was stopped he put his head out the left window and waited for the guard to come out. Couillard knew that he was straddling the track. After 20 or 30 seconds the rig was pushed over on its left side by a slow-moving switch engine which the E.J. & E. operated and which approached the rig from the right. The injuries complained of resulted from this collision.
The track upon which the engine approached ran parallel to 86th Street, an east-west street, and was a short distance south of it. (The rig was pointing east at the time of the collision.) A fence and some parked cars separated 86th Street from the track. At a point south of the entrance gate the track curved northerly, and at the point of the collision the track ran in a northeasterly direction.
Jay S. Merriman, an employee of the E.J. & E., operated the switch engine that was involved in the accident. Just before the accident the engine was moving forward. There were no railroad cars attached to it. Merriman was sitting in the engineer's seat on the right side of the cab which was located to the rear of the engine. He testified that it was his duty to observe everything on the right of the engine. Merriman was watching a switchman who was walking on the right side of the train. Mr. Hardy, an employee of the E.J. & E., was sitting on the left side of the cab. Hardy was not called as a witness. Presumably he could have observed the tractor-trailer from his position in the cab.
Merriman testified that the locomotive was 300 feet away from the point of collision when it started to go forward. From the point at which the track started to curve in a northeasterly direction to the point of collision was about 45 feet. According to Merriman for the 5 minutes preceding the collision the train was continuously moving at a speed of less than 1 mile per hour. Seconds before the collision Hardy told Merriman that the trailer was on the tracks. When he received this warning he immediately applied the brakes and stopped the train within 1 or 2 feet.
The locomotive hit the trailer approximately one quarter of the way from the front. Couillard described the collision as a push or a nudge. Although the tank was not punctured, the oil did spill on the ground through a valve on the top of the trailer. Merriman testified that he did not feel the impact and did not know that he had hit the rig. According to his testimony, there were trucks stopped or going by, in the area 90 percent of the time.
The evidence showed that the artificial lighting in the area was fairly good. The headlight of the locomotive was on dim. The semi-trailer was 11 feet high and was illuminated with numerous multi-colored lights which were functioning properly. The testimony was in conflict as to when the bell was sounded. Couillard testified that he first heard the bell when the rig was going over. Merriman testified that he operated the bell continuously for the 25 feet preceding the collision, and that the bell was ringing for 2 or 3 minutes before the time Hardy told him to stop. According to Merriman's description the locomotive made a very loud noise.
The switching track where the collision occurred was not equipped with any warning apparatus and no flagman was present, although Couillard testified that on some previous occasions a flagman was present. Merriman testified that when he saw a train coming he would stop. However, on the night of the collision, neither before he crossed the track nor while he was straddling it did he look both ways for a train. He maintained that he could not see down the track to his right because it curved out of his sight.
The entire area inside the plant was paved. In addition to the track on which the collision occurred, Couillard would necessarily have to cross 8 to 12 other sets of tracks depending on his destination within the plant. Some of these tracks had stop signs, flashers, or railroad crossing signs, presumably located in places where traffic would normally flow. However, there was no distinguishing marks on the pavement which delineated any roadways. A stop sign was located at a set of tracks, east of the point of collision. According ...