APPEAL from the Circuit Court of Peoria County; the Hon.
EDWARD E. HAUGENS, Judge, presiding.
MR. PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 28, 1976.
Plaintiff appeals from an order of the circuit court of Peoria County directing a verdict for defendant and against plaintiff.
This action was brought by Eileen Spring, individually and as executor of the estate of Glenn E. Spring, to recover damages for decedent's death. The jury returned a verdict in favor of plaintiff and judgment was entered for plaintiff on September 27, 1974, in the amount of $168,464.
The defendant, Toledo, Peoria & Western Railroad Company, filed a post-trial motion for directed verdict and judgment notwithstanding the verdict. The trial court, having reserved a ruling on defendant's earlier motion for directed verdict presented at the close of the evidence, found for the defendant, overturned the jury award, and entered judgment for the defendant on February 14, 1975. Since this appeal is from a directed verdict, a comprehensive account of the facts presented to the jury is essential.
The circumstances causing decedent's death involve a collision between decedent's truck and defendant's train at a country railroad crossing. The decedent was a construction worker and on the morning of October 5, 1972, he was driving his pickup truck to the construction site for the City of Washington sanitation plant. The last segment of his route required decedent to travel over a dirt road located on the farm of Roy Roper, commonly known as Roper Lane or Roper Road. After inclement weather had made alternative routes impassable, the owner of the private road, Mr. Roper, was paid to allow workers and supplier to use Roper Road to reach the construction site. Roper Road intersects the railroad track of defendant at a point immediately north and east of the construction site. To reach the construction site via Roper Road, it was necessary to cross the tracks and right of way of defendant from the north. In fact, this remained the only manner of access to the construction site. The crossing itself was merely dirt and gravel of sufficient height to enable a vehicle to pass over the individual rails. No lights, bells, or warnings of any kind, were located at the crossing. Brush between 6 and 12 feet high lined the north side of defendant's right of way approximately 10 to 12 feet back from the tracks. The track both east and west of the crossing is curved in such a manner that even at a moderate distance, the beams of the headlamp of a train approaching from the east do not shine directly on the track, but rather point south of the rails towards the construction site. The combination of the northward arc of the curve and the presence of high brush north of the track, limit the visibility of a train to a car approaching from the north to several hundred feet, even in the best of weather conditions. Defendant had a speed restriction of 35 miles per hour in effect for the operation of trains along the section of track where the accident occurred.
The weather conditions on the morning of the occurrence were less than ideal. It is uncontroverted that a heavy morning fog hung over the entire countryside at the time of the accident. The engineer operating the train that collided with decedent's truck estimated the visibility to be "less than 100 feet." The fireman on the train stated that the visibility was less than two railroad car lengths, which is approximately 100 feet. Another occurrence witness, Carl Call, a construction worker who arrived at the site a short time before the accident, testified that it was "real foggy." The engineer recalled that the headlights on the train were operating, but that the bell was not ringing.
The speed of the train is some matter of controversy. The engineer and fireman both testified that the speed of the train was 35 miles per hour, the same as the speed restriction then in effect. The engineer observed the speed on the speedometer in front of him whereas the fireman stated his estimate as to the speed based only on the sensation of speed and previous experience in operating similar locomotives. However, another employee of defendant, Alvin Polich, was called to testify as to the speed displayed on a speed recording device that had been in continuous operation on the morning of the accident. He testified that the device had recorded a speed of 50 miles per hour immediately prior to the train being thrown into emergency brake. Defendant failed to introduce any evidence to show that the speed recording device was not working properly on October 5.
There is also controversy surrounding the exact type of warning whistle given by the engineer as he approached the Roper crossing. He stated he gave the signal customarily given at public crossings, which involved giving four blasts on the whistle, two long-one short-one long. Mr. Call testified he first heard the train after he had gotten out of his parked car and was standing next to it. From the type of signal given and intensity of the sound, it was his opinion that the train was "a couple miles up the track" to the east. He testified he next heard one short whistle blast and then saw the light of the train at a position 400-450 feet from Roper crossing. From his location approximately 50 feet south of the track, the glare of the train light was in his direction. Oswald Shlack, who had crossed the track in his truck moments before the Spring vehicle attempted to cross, testified that he did not hear any whistle at all. Mr. Shlack first realized the nearness of the train when he looked to his left and saw the headlamp of the approaching train. Believing that the front of his truck was close enough to the tracks to be struck by the oncoming train, he accelerated across the tracks. The decedent proceeded behind him and was struck by the train.
Mr. Shlack did not recall whether he came to a complete stop or just slowed down. The train's engineer stated that neither vehicle came to a complete stop before crossing the tracks, but estimated each vehicle's speed when approaching the crossing was 10 miles per hour. The engineer did not see either vehicle until each appeared from behind the brush that lined the side of the roadbed, some 10 feet from the closest rail.
The ultimate issue of defendant's liability was tried under a theory that defendant was guilty of wilful and wanton conduct. The wilful and wanton standard constituted the degree of care required of defendant because decedent was a trespasser on defendant's right of way. It was uncontroverted that while Mr. Roper had been contacted and paid for the use of his road, no one had ever sought permission of the railroad to travel upon its right of way. Since the decedent became a trespasser when he entered upon the land of defendant without authorization, defendant's duty to decedent was only that of a landowner to a trespasser. Hence, defendant only had to refrain in engaging in wilful and wanton conduct. The decedent had the reciprocal obligation of not engaging in contributory wilful and wanton conduct. It is a corollary of the general rule that contributory negligence is a defense to a negligence action, that contributory wilful and wanton misconduct of the plaintiff is a defense for a defendant charged with wilful and wanton conduct. (Zank v. Chicago, Rock Island & Pacific R.R. Co., 17 Ill.2d 473, 161 N.E.2d 648.) Mere contributory negligence is not a defense to a charge of wilful and wanton conduct. (Elgin, Joliet & Eastern Ry. Co. v. Duffy, 191 Ill. 489, 61 N.E. 432; Mattyasovszky v. West Towns Bus Co., 21 Ill. App.3d 46, 313 N.E.2d 496, aff'd, 61 Ill.2d 31, 330 N.E.2d 509.) The case went to the jury on this theory and the jury found for plaintiff. In a special interrogatory the jury also found plaintiff guilty of contributory negligence. However, it was the opinion of the trial judge that the evidence so overwhelmingly established decedent's contributory wilful and wanton conduct, that no contrary verdict could ever stand and accordingly directed a verdict in favor of the defendant. Though the trial court based its decision solely on decendent's contributory conduct, two primary issues are presented to us for review.
• 1, 2 The plaintiff contends the evidence does not establish as a matter of law that decedent was guilty of contributory wilful and wanton conduct. Defendant denies this contention and also claims the evidence fails to establish, as a matter of law, that defendant was guilty of wilful and wanton conduct. To determine whether plaintiff's actions rise to the status of contributory wilful and wanton conduct as a matter of law, it must first be established what the standard is for contributory wilful and wanton conduct.
The Illinois Supreme Court has defined wilful and wanton conduct to be either an intentional injury or an act "committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care." Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 583, 69 N.E.2d 293; accord, Brown v. Illinois Terminal Co., 319 Ill. 326, 150 N.E. 242; Marquart v. Toledo, Peoria & Western R.R. Co., 30 Ill. App.3d 431, 333 N.E.2d 558.) In attempting to elucidate the concept contained in the words wilful and wanton conduct, our Supreme Court in Brown v. Illinois Terminal Co., 319 Ill. 326, 150 N.E. 242, commented as follows:
"Such conduct [wilful and wanton] imports consciousness that an injury may probably result from the act done and a reckless disregard of the consequences. Ill-will is not a necessary element to ...