{
  "id": 5322777,
  "name": "Edward Kutsenkow, Plaintiff-Appellant, v. Chicago and North Western Railway Company, Defendant-Appellee",
  "name_abbreviation": "Kutsenkow v. Chicago & North Western Railway Co.",
  "decision_date": "1968-09-16",
  "docket_number": "Gen. No. 52,696",
  "first_page": "265",
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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    {
      "cite": "235 Ill 374",
      "category": "reporters:state",
      "reporter": "Ill.",
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      "cite": "229 NE2d 504",
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      "opinion_index": 0
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    {
      "cite": "37 Ill2d 494",
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    {
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      "opinion_index": 0
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    {
      "cite": "333 Ill App 567",
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  "last_updated": "2023-07-14T22:48:23.218839+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Edward Kutsenkow, Plaintiff-Appellant, v. Chicago and North Western Railway Company, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "MR. PRESIDING JUSTICE BURMAN\ndelivered the opinion of the court.\nPlaintiff, Edward Kutsenkow, brought an action for damages against defendant, Chicago & North Western Railway Company, for damages sustained by his refrigerator trailer when he attempted to drive the vehicle under defendant\u2019s viaduct. At the close of plaintiff\u2019s case, the Court sustained defendant\u2019s motion for a directed verdict and plaintiff appeals from the judgment entered on said verdict.\nThe plaintiff testified that on August 18, 1960, during the early morning hours, he was driving his truck (which was twelve feet six inches in height) in a northerly direction on Kimball Avenue enroute to a destination where he was to deliver the sixteen tons of paper he was carrying. It was still dark outside. The streets were wet. The weather was foggy. Traffic was very heavy. Kutsenkow had a helper sitting in the tractor\u2019s cab along with him. Before he came to the viaduct where the accident occurred, plaintiff passed under two other viaducts. Plaintiff stopped his truck before entering the first of these \u201c. . . because it looked pretty low.\u201d After \u201cchecking out\u201d the viaduct, plaintiff and his helper saw that they had a little clearance so they proceeded on their way under the viaduct. When plaintiff came to the second viaduct he again brought his vehicle to a complete stop because the viaduct didn\u2019t have any markings to show what the clearance was. He and his helper examined the viaduct and determined that it afforded adequate clearance, so they proceeded on their way under it. Shortly thereafter, Kutsenkow approached defendant\u2019s viaduct. This viaduct was twelve feet, four inches in height, and it did not have any markings to indicate the amount of clearance it afforded. Plaintiff proceeded towards the viaduct in question at a slow rate of speed: \u201cWell, I looked there and it appeared like it was just about as high as the other two viaducts and I wasn\u2019t going too fast at that particular time; before I could apply my brakes to stop the thing and with all the traffic that was around, we had come under the viaduct and the damage occurred to the top of the trailer.\u201d On cross-examination the plaintiff testified that one of the reasons he slowed down before entering the viaduct of the defendant was that he \u201c. . . kind of got doubtful about the viaduct.\u201d\nPlaintiff contends, on appeal, that the trial judge erred in directing a verdict for defendant in that the question of his contributory negligence \u201c. . . was preeminently a question of fact for the jury.\u201d Secondly, he contends that the Court erred \u201c. . . in excluding any evidence as to other accidents of a similar character to show notice to the defendant of a dangerous and unsafe condition.\u201d\nAs to the plaintiff\u2019s first point, we believe that the opinion of this Court in Carr v. Chicago & N. W. Ry. Co., 333 Ill App 567, 77 NE2d 857, is dispositive of the issues raised thereby. In Carr, plaintiff\u2019s employee attempted to drive plaintiff\u2019s truck under defendant\u2019s unmarked viaduct without stopping first to determine whether the viaduct afforded adequate vertical clearance. As it turned out, the truck was several inches higher than the viaduct and collided with it. Plaintiff brought an action against defendant for the damages sustained by the truck alleging that the defendant, in the exercise of reasonable care, should have elevated the viaduct or posted signs. This Court, in affirming a directed verdict for defendant, stated that the judgment of the trial court could be supported either by plaintiff\u2019s lack of due care or by an absence of duty owed by defendant to plaintiff. The Court held that as a matter of law the defendant had not been negligent in failing to post signs designating the clearance under the viaduct, stating, at page 572: \u201cGenerally, a railroad is not liable where the overhead structure has been placed under due authority, been constructed with reasonable skill and maintained in good repair.\u201d\nIt is undisputed that plaintiff attempted to drive his truck under defendant\u2019s viaduct (which he was \u201ckind of doubtful about\u201d) without first stopping his vehicle, as he had done on two previous occasions, to see whether there was adequate clearance. Furthermore, plaintiff failed to introduce evidence to the effect that the defendant did not have proper authority to construct the viaduct or, that there was any statute then in effect requiring the defendant to post clearance signs, or that the viaduct in question had not been constructed with reasonable skill and maintained in good repair. Therefore, in viewing the evidence in its aspect most favorable to the plaintiff, we agree with the trial court that it so overwhelmingly favors the defendant that no contrary verdict based on the evidence could ever stand. The trial judge correctly directed a verdict in favor of the defendant. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504.\nIt is next contended by plaintiff that the trial court erred in excluding evidence to the effect that another vehicle approximately the same height as plaintiff\u2019s truck had struck defendant\u2019s viaduct within a year previous to the incident in question. Plaintiff made an offer of proof that the defendant had a claim filed in regard to this prior accident, containing an investigation report. The offer of proof was denied. Plaintiff argues that the excluded evidence was admissible to show that the defendant knew of the unsafe condition created by the failure to post clearance signs on its viaduct. Plaintiff contends further that \u201cit is a well settled principle of common law that any person or corporation that cuts through or crosses over a highway for the benefit of such person or corporation, must furnish the public a proper safe crossing.\u201d\nAs we have already pointed out in our discussion of the Carr decision the defendant in the instant case was under no duty to vehicles passing under its viaduct to post signs designating the clearance the viaduct afforded. Therefore, any notice the defendant may have had about a supposed dangerous condition created by its failure to post signs was irrelevant to a determination of defendant\u2019s negligence. Furthermore, plaintiff\u2019s offer of proof did not tend to show that the previous accident had in any way been caused by defendant\u2019s failure to maintain its viaduct in a good state of repair. We hold that the trial court correctly denied the offer of proof. In addition, we point out that while we agree with plaintiff\u2019s contention that a railroad must exercise reasonable care to provide safe crossings at highways in existence, and that a crossing includes a viaduct, we cannot agree that this duty extends to the maintenance of the public roadway beneath the viaduct. People v. Illinois Cent. R. Co., 235 Ill 374, 380, 85 NE 606.\nFor the reasons given the judgment is affirmed.\nAffirmed.\nADESKO and MURPHY, JJ., concur.",
        "type": "majority",
        "author": "MR. PRESIDING JUSTICE BURMAN"
      }
    ],
    "attorneys": [
      "O\u2019Brien, Hanrahan, Wolfe & Been, of Chicago (Ernest L. Wojcik, of counsel), for appellant.",
      "James P. Daley and John C. Boylan, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "Edward Kutsenkow, Plaintiff-Appellant, v. Chicago and North Western Railway Company, Defendant-Appellee.\nGen. No. 52,696.\nFirst District, First Division.\nSeptember 16, 1968.\nO\u2019Brien, Hanrahan, Wolfe & Been, of Chicago (Ernest L. Wojcik, of counsel), for appellant.\nJames P. Daley and John C. Boylan, of Chicago, for appellee."
  },
  "file_name": "0265-01",
  "first_page_order": 273,
  "last_page_order": 277
}