Opinion
No. 42671.
July 14, 1952.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, DIVISION NO. 9, WILLIAM K. KOERNER, J.
Louis E. Miller, Miller Landau, B. Sherman Landau, St. Louis, for appellant.
Jones, Hocker, Gladney Grand, Lon Hocker, St. Louis, W. F. West, F. E. Hewitt, Cleveland, Ohio, of counsel, for respondent.
Plaintiff-appellant, a physician and surgeon residing in the City of Edwardsville, Illinois, sustained personal injuries when an automobile operated by him was struck by defendant's eastbound freight train at a public crossing in that city. He brought this action in the Circuit Court of the City of St. Louis to recover damages therefor in the sum of $43,760. The jury returned a verdict in favor of defendant. From the judgment entered in conformity therewith, plaintiff appealed.
The petition pleaded that the crossing was extraordinarily hazardous and set forth five specifications of negligence as proximate causes of the collision. But, at the close of the evidence, plaintiff requested only that the cause be submitted, and it was submitted, on the issue of defendant's failure to ring the bell or sound the whistle of the engine at least eighty rods from the crossing and to keep the same ringing or sounding until reaching the highway, as required by § 59, Chapter 114, Smith-Hurd Ill.Ann.St.
Plaintiff assigns five grounds of error as entitling him to a new trial. Defendant asserts, however, that plaintiff did not make a submissible case of negligence on the part of defendant and that plaintiff's evidence showed him to be guilty of contributory negligence as a matter of law; and that, regardless of trial errors, the judgment should be affirmed.
The crossing is situated in a residential and industrial area of Edwardsville, a city having a population of 7,800. East Schwarz Street extends east and west. A north-south street crosses it at an approximate right angle. This street is designated as Springer Avenue as it extends northward from East Schwarz Street and Judd Avenue as it extends southward from East Schwarz. Defendant's track, lying in the center of a seventy-five foot right of way, approaches the intersection of these streets from the southwest on a broad curve to the right (northeastwardly), runs across the southeast corner of the intersection, thence diagonally along and gradually crossing East Schwarz Street until it emerges from the north line thereof some two hundred fifty feet east of the East Schwarz Street and Springer-Judd Avenues intersection.
The level of Springer Avenue and the other terrain north of the track is eight feet lower than the track and the terrain south thereof. About seventy-five feet north of East Schwarz, traveled roadways branch off from Springer in a "Y" fashion to the east and west respectively, so that motorists traveling southward on Springer and desiring to turn eastward or westward onto East Schwarz are not required to make an abrupt right angle turn in so doing. Hence, a motorist going southward on Springer and desiring to turn eastward on Schwarz begins at a point about seventy-five feet north of the intersection to veer eastward in a curving direction along the east "cutoff" and crosses defendant's track sixty to seventy feet east of the east side of Springer. And, in so doing, he ascends the incline of approximately eight feet, and passes over the crossing at an acute angle to the track as it extends southwestward from that point.
Plaintiff had practiced his profession in Edwardsville since 1927 and was thoroughly familiar with this crossing and its approaches. At about 11:45, a. m., on February 2, 1949, a clear day, plaintiff, alone, drove his automobile southward on Springer, veered to the left along the course above described for the purpose of crossing the track and going eastward on East Schwarz. He had gotten to a point on the crossing where the right front wheel of his car was over the first rail of the track when he heard the ringing bell of a train which sounded as though it was immediately over his head. He shifted the gear of his car into reverse and attempted to back it off the track. At that instant the right side of his car was struck by defendant's eastbound freight train.
The testimony as to any warning of the approach of the train being given is conflicting. Five witnesses, other than plaintiff, testified to the effect that no warning signal was sounded. Three members of the train crew and two other witnesses testified that the statutory signal by whistle was given. The engineer testified the bell was set to ring but the noise of the train was such that he could not positively say it was ringing.
Defendant argues that plaintiff's testimony that he heard the train bell ringing an instant before his car was struck amounts to an admission that the bell was being rung; and, of course, so it does. But it does not amount to an admission that the bell was rung and kept ringing for a distance of eighty rods before the train reached the crossing, as required by the Illinois statute. In view of the testimony of plaintiff's witnesses we hold that plaintiff made a submissible case on the issue of failure to give either of the statutory warning signals.
This brings us to the more serious question of whether plaintiff was guilty of contributory negligence as a matter of law. Plaintiff testified that the roadway up to the first rail was a "little rough" and between the rails was "full of holes". Plaintiff's Exhibit 4, a photograph taken at some distance back of the crossing, shows several poles, a crossing sign and a signal box that to a certain extent obscure the view plaintiff had to the westward as he approached the crossing, but this exhibit also shows that these objects would not preclude a view of a train approaching from that direction.
Plaintiff's further testimony was that when he had entered the "cutoff" and was driving up the incline fifteen or twenty feet from the crossing he looked to his left (east) for about a second and could see a clear track for about one-half mile. When he was ten or fifteen feet from the track he looked to the west for the first time and did not see the train. And then:
"Q. From that position, Doctor, how far can you look and see a moving object such as a train coming around the curve there? In other words, how far can you see it from that particular crossing where this particular collision occurred, assuming you are fifteen or ten feet from the point where you made the observation? A. I assume a hundred yards."
(A plat and Exhibit 5, a photograph, introduced in evidence by plaintiff, show clearly that from this point plaintiff, could see westward along the track a distance of from four hundred to five hundred feet.)
He further testified that his car was then in second gear and had slowed to a speed of about three miles per hour; that his first and only look to the west was just a glance; and that he could have stopped his car within ten feet.
One of plaintiff's witnesses testified that the train was traveling forty to fifty miles an hour as it approached the crossing. Defendant's engineer testified to a train speed of thirty-two to thirty-five miles immediately before the collision.
We are convinced that the testimony above set forth, and there is none more favorable to him, convicts plaintiff of contributory negligence as a matter of law.
It is obvious that traveling at three miles per hour, approximately four and one-half feet per second, on the sharp incline at that point, and, he says, alert to his surroundings, plaintiff could have stopped his car within a considerably less distance than ten feet.
Assuming the speed of the train to have been forty-five miles per hour and the speed of plaintiff's car at three miles per hour: If plaintiff looked westward toward the approaching train when his car was 15 feet from the crossing, the train was only 225 feet from it, clearly within his view; if he looked westward when 10 feet from the track, the train was only 150 feet from the crossing, even more clearly within his view. He could have stopped his car at either point before coming within range of the overhang of the train.
Furthermore, plaintiff's admission that when he was ten or fifteen feet from the crossing he could see the track for a distance of three hundred feet to the west thereof (he could have seen a greater distance) shows that had he looked carefully he would have seen the train. Under such circumstances, to look carefully is to see.
"One who has an unobstructed view of an approaching train is not justified in closing his eyes or failing to look, or in crossing a railroad track upon the assumption that a bell will be rung or a whistle sounded. No one can assume there will not be a violation of the law or negligence of others and then offer such assumption as an excuse for failure to exercise care. The law considers obnoxious a contention to the effect that a person looked but did not see a train when the view was not obstructed, and where, if he had properly exercised his sight, he must have seen it." Carrell v. New York Cent. R. Co., 384 Ill. 599, 52 N.E.2d 201, 204. See also: Soule v. Chicago N.W. Ry. Co., 7 Cir., 175 F.2d 424, 426, and Howie v. St. Louis S.W. Ry. Co., 360 Mo. 771, 230 S.W.2d 703.
Neither did the fact that the crossing was at an acute angle from the approaching train, nor the inclining approach thereto, nor the condition of the highway, relieve plaintiff of the duty imposed upon him as set forth in the above cases. These facts "only made that duty more imperative, since he [plaintiff] was bound to exercise care for his own safety commensurate with the situation in which he found himself." Gulf, M. O. R. Co. v. Freund, 8 Cir., 183 F.2d 1005, 1012, 21 A.L.R.2d 729; Carrell v. New York Cent. R. Co., supra.
We have not overlooked a line of early Illinois cases cited by plaintiff to the effect that certain circumstances shown in each of those cases relieved the plaintiff (or his or her decedent) from looking or listening before entering upon a railroad crossing. They are not controlling here. Cases of similar import were considered in our recent case of Howie v. St. Louis S.W. Ry. Co., supra, dealing with the Illinois law relating to this subject, and there distinguished under facts analogous to those in this case.
In his reply brief, plaintiff suggests that the engineer and fireman were guilty of "willful and wanton negligence" within the meaning of that term under the law of Illinois, which, when established, subjects the wrongdoer to liability notwithstanding plaintiff's prior contributory negligence; and that the case should be remanded for a new trial on that theory.
Defendant's evidence tended to show that due to the curvature of the track the engineer's view of the crossing was obstructed and that he never saw plaintiff and was unaware of any impending collision until he observed excited activity on the part of the fireman an instant before the collision; and that the fireman saw the dangerous situation shortly before the collision and tried to warn the engineer but was unable to make him understand. There was no evidence to the contrary. In rebuttal, plaintiff offered to prove by a witness that on numerous occasions prior to the day of the collision here involved witness had waved at the fireman as the train passed through Edwardsville, and that on the day of the collision the fireman was not in his usual position on the north side of the engine cab as the engine passed over the Springer Street crossing.
The evidence, including that proffered, reflects no circumstance or set of circumstances tending to show willful or wanton negligence on the part of defendant's agents. Provenzano v. Illinois Cent. R. Co., 357 Ill. 192, 191 N.E. 287, 288; Howie v. St. Louis S.W. Ry. Co., supra.
The judgment of the trial court, being for the right party, is affirmed.
All concur.