{ "id": 3261850, "name": "HAROLD J. KNOTT, Adm'r of the Estate of Loraine M. Knott, Deceased, Plaintiff-Appellant, v. CHICAGO & EASTERN ILLINOIS RAILROAD COMPANY et al., Defendants-Appellees", "name_abbreviation": "Knott v. Chicago & Eastern Illinois Railroad", "decision_date": "1979-06-28", "docket_number": "No. 78-365", "first_page": "707", "last_page": "713", "citations": [ { "type": "official", "cite": "73 Ill. App. 3d 707" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "79 N.E.2d 301", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "334 Ill. App. 268", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2429186 ], "opinion_index": 0, "case_paths": [ "/ill-app/334/0268-01" ] }, { "cite": "297 N.E.2d 363", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "11 Ill. App. 3d 715", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2936080 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0715-01" ] }, { "cite": "46 N.E. 1071", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "166 Ill. 623", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5500704 ], "weight": 2, "pin_cites": [ { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/ill/166/0623-01" ] }, { "cite": "11 N.E.2d 537", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "538" } ], "opinion_index": 0 }, { "cite": "104 Ind. App. 501", "category": "reporters:state", "reporter": "Ind. App.", "case_ids": [ 1562877 ], "weight": 2, "pin_cites": [ { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/ind-app/104/0501-01" ] }, { "cite": "383 N.E.2d 919", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "73 Ill. 2d 160", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5441154 ], "weight": 3, "pin_cites": [ { "page": "169" }, { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/73/0160-01" ] }, { "cite": "229 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "37 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "year": 1978, "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] }, { "cite": "371 N.E.2d 994", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "56 Ill. App. 3d 217", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3415454 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/56/0217-01" ] }, { "cite": "142 N.E. 194", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1977, "opinion_index": 1 }, { "cite": "310 Ill. 515", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5107464 ], "year": 1977, "opinion_index": 1, "case_paths": [ "/ill/310/0515-01" ] }, { "cite": "146 N.E.2d 7", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1923, "opinion_index": 1 }, { "cite": "12 Ill. 2d 348", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2779304 ], "year": 1923, "opinion_index": 1, "case_paths": [ "/ill-2d/12/0348-01" ] } ], "analysis": { "cardinality": 765, "char_count": 15866, "ocr_confidence": 0.894, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.33770733351635557 }, "sha256": "811d08227e6e2a0750144876ae599d4d533739e41945fc83b6ccf0d3bdcef327", "simhash": "1:8a06d751c6b4a5e4", "word_count": 2665 }, "last_updated": "2023-07-14T21:56:34.335432+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HAROLD J. KNOTT, Adm\u2019r of the Estate of Loraine M. Knott, Deceased, Plaintiff-Appellant, v. CHICAGO & EASTERN ILLINOIS RAILROAD COMPANY et al., Defendants-Appellees." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE GEORGE J. MORAN\ndelivered the opinion of the court:\nPlaintiff, Harold J. Knott, administrator of the estate of Loraine Knott, deceased, brought this wrongful death action in the circuit court of Johnson County to recover for damages sustained by reason of his wife\u2019s death allegedly caused by the negligent operation of defendant\u2019s train. In addition to the defendant Chicago & Eastern Illinois Railroad Company, plaintiff joined Byron L. Lowery and John R. Evans, engineer and brakeman of the train in question. Evans was dismissed from the suit and is not a party in this appeal. At the close of plaintiff\u2019s evidence, the trial court granted the remaining defendants\u2019 motions for a directed verdict and entered judgment for the defendants ruling that plaintiff\u2019s decedent was contributorily negligent as a matter of law.\nThe accident in question occurred on January 14, 1974, at approximately 12:30 p.m. at the grade crossing of the Cypress-Dongola Road and defendant\u2019s tracks located in Johnson County. Decedent\u2019s automobile, a 1969 Oldsmobile Delta 88, was traveling east on the Cypress-Dongola Road and was struck near the center of the driver\u2019s side by defendant\u2019s southbound train. Mrs. Knott was killed instantaneously.\nDonald Dilback, a delivery driver for United Parcel Service, arrived upon the scene of the accident shortly after it occurred. He described the weather conditions that day as \u201cvery foggy # \u00b0 the fog right at the crossing was worse than in other areas * \u00b0 He described the condition of the grade crossing as \u201cpitiful.\u201d Dilback did not see a train when he stopped to assist the decedent, nor did he see a train upon returning from the Lytle Diner where he had gone to call an ambulance.\nRuby Lytle operated a diner located on the north side of the CypressDongola Road, within 150 feet of the defendant\u2019s tracks. She stated: \u201cIt was very foggy, visibility was completely zero.\u201d Describing the condition of the grade crossing, she stated: \u201cIt was very rough * * * you have to come almost to a total stop.\u201d Lytle testified that she did not hear a train whistle or bell.\nForest Campbell was eating lunch at the Lytle Diner on the day the accident occurred. He testified that it was \u201cvery foggy\u201d and that the grade crossing was \u201cvery rough.\u201d He heard the train coming through the area and the noise of the cars, but did not hear a whistle, bell or horn.\nLottie Parker, who resides north of the Lytle Diner, within 200 feet of the defendant\u2019s tracks, testified that she was washing clothes in the utility room in the back of her house on the day of the accident. The Parker house is situated so that the back of the house faces defendant\u2019s tracks. On direct examination she testified:\n\u201cI was aware of the train going in back of the house and then I heard him put the air \u2014 throwed [sic] the air on is the way I put it, and all the cars abumping together.\u201d\nShe heard no whistle, bell, or horn. She described the weather conditions as \u201cvery, very foggy\u201d and the condition of the grade crossing as \u201cvery rough,\u201d noting \u201cyou had to come almost to a complete stop to go across it.\u201d\nPlaintiff, Harold J. Knott, was hunting with a friend approximately one-half mile west of the grade crossing when the accident occurred. He saw his wife as she passed by on the Cypress-Dongola Road and said that she was traveling approximately 10 to 15 miles per hour. He described the weather conditions as \u201cvery foggy\u201d and the grade crossing as \u201cvery rough.\u201d Knott testified that his wife\u2019s car was in excellent condition. He acknowledged his wife\u2019s familiarity with the crossing in question and stated that she had traveled over the particular crossing many times, at least 60 times during the previous year. Knott testified: \u201cI heard a train toot just one little toot, maybe a second or a half of a second, but nothing more.\u201d In concluding, he stated: \u201cIf the train whistles like it\u2019s supposed to whistle, I hear it every time it goes by.\u201d\nByron L. Lowery, engineer of the train, was called by plaintiff under section 60 of the Civil Practice Act. He testified that the train consisting of an engine, 10 cars and a caboose, was traveling approximately 30 miles per hour or 44 feet per second and that it would take almost 1000 feet to stop such a train traveling at that speed. Upon seeing a sounding post located 80 rods north of the crossing, Lowery testified that he rang the train\u2019s bell and sounded the whistle. Some 200 to 300 feet north of the crossing Lowery applied the emergency brake when the brakeman exclaimed: \u201cThere\u2019s a car coming up fast, put it in emergency.\u201d After colliding with decedent\u2019s automobile, the train traveled approximately 800 feet south of the crossing. Lowery described the weather conditions as \u201cfoggy\u201d with a visibility of \u201cabout 500 feet\u201d and the condition of the track bed at the crossing as \u201cvery good.\u201d\nUnder the familiar Pedrick standard, the trial court\u2019s ruling in this case is correct only if all the evidence, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favors the defendants that no finding of the decedent\u2019s freedom from contributory negligence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) Defendant claims that decedent was contributorily negligent as a matter of law in failing to see the train and in failing to avoid the accident. When recently addressing this same issue, our supreme court in National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 383 N.E.2d 919, noted:\n\u201c[I]n approaching [railroad crossings] a person is required to diligently use the senses of sight and hearing and to exercise a degree of care commensurate with the known danger. [Citations.] 000 However, the law readily acknowleges that if a crossing is obstructed, a person, diligently using the senses of sight and hearing and exercising the ordinary care expected under the circumstances, might be excused for failing to perceive that the train was approaching. [Citation.] A person is not required to come to a complete stop before traversing an obstructed crossing, nor is he required to keep a continuous lookout in the direction from which a train may be coming. [Citations.]\u201d 73 Ill. 2d 160, 169.\nAn Indiana case, New York Central R.R. Co. v. Kirk (1937), 104 Ind. App. 501, 11 N.E.2d 537, is strikingly similar to this case. In that case the decedent was killed when his automobile was struck by a passenger train. There was evidence that a dense fog obscured the decedent\u2019s vision and that the statutory train signals were not given. The jury returned a verdict for the plaintiff and the railroad appealed, contending, inter alia, that decedent was contributorily negligent as a matter of law. The Indiana court stated:\n\u201cThere is evidence from which the jury was warranted in concluding, as the verdict indicates, that the statutory signals as required by section 55-1243, supra, were not given; that there was a fog which obscured the vision of the appellee\u2019s decedent as he approached the intersection; that because of such fog, had decedent looked to the east, the direction from which the train was approaching, he would have been unable to see the train, and because of the lack of signals, as above shown, even if he listened, he could not have heard (as by statute contemplated) the train\u2019s approach, hence decedent was not guilty of contributory negligence and the negligence of the New York Central Railroad Company in failing to give the signals was the proximate cause of decedent\u2019s death.\u201d (104 Ind. App. 501, 503, 11 N.E.2d 537, 538.)\nSimilarly, when the facts of this case are viewed in their aspect most favorable to the plaintiff, it is clear that the jury could have found that plaintiff\u2019s decedent was not contributorily negligent. There was a dense fog on the day of the accident which could have obscured decedent\u2019s vision; there was evidence that the crossing was very rough, requiring the exercise of extreme caution in traversing the grade; and there was testimony that no bell, whistle, or horn sounded before the accident occurred.\n\u201cGenerally, in those cases in which a crossing is obscured, whether a plaintiff exercised due care and whether the obstruction prevented the plaintiff from perceiving an oncoming train are questions of fact for the jury and not matters of law which would require the court to intervene.\u201d (National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 169.)\nThe logic of the Illinois Supreme Court in Chicago & Northwestern Ry. Co. v. Hansen (1897), 166 Ill. 623, 46 N.E. 1071, merits repeating here:\n\u201cThe traveler may not be at fault in failing to look or listen if misled without his fault, or the view may be obstructed by objects or by darkness, \u201c \u00b0 It seems to us impossible that there should be a rule of law as to what particular thing a person is bound to do for his protection in the diversity of cases that constantly arise, and the question what a reasonably prudent person would do for his own safety under like circumstances must be left to the jury as one of fact. [Citations.]\u201d 166 Ill. 623, 628.\nDefendant contends that decedent had a duty to stop at the grade crossing. Section 11 \u2014 1201 of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95\u00bd, par. 11\u20141201) provides:\n\u201c[A] driver shall stop within 50 feet but not less than 15 feet from the nearest rail of the railroad and shall not proceed until he can do so safely. 000 when: e # #\n3. A railroad train approaching a highway crossing emits a warning signal and such railroad train, by reason of its speed or nearness to such crossing, is an immediate hazard;\n4. An approaching railroad train is plainly visible and is in hazardous proximity to such crossing;\n5. A railroad train is approaching so closely that an immediate hazard is created.\u201d\nAs we have noted previously, there was sufficient evidence introduced at trial upon which the jury could have concluded that the train did not emit a warning signal, that it was not plainly visible, and that plaintiffs decedent did not know the train created an immediate hazard to her well-being. Accordingly, this contention is without merit.\nFinally defendant contends that the testimony of the train engineer, Byron L. Lowery, is binding on the plaintiff as to evidence of decedent\u2019s due care. Called as an adverse witness under section 60 of the Civil Practice Act, Lowery quoted the brakeman as stating: \u201cThere is a car coming up fast, put it in emergency.\u201d A party is bound by the testimony of an adverse witness only to the extent it stands uncontradicted and unrebutted. (Peters v. Hervy (1973), 11 Ill. App. 3d 715, 297 N.E.2d 363.) Here the plaintiff introduced circumstantial evidence that contradicted Lowery\u2019s testimony. For example, there was evidence of decedent\u2019s speed approximately one-half mile west of the crossing, decedent\u2019s familiarity with the crossing in question, and the extreme caution necessary to traverse the crossing. Due care and caution for one\u2019s own safety need not be established by direct proof; it may be shown by circumstantial evidence, or may be inferred by the jury from circumstances appearing in the proof. (Randolph v. New York Central R.R. Co. (1948), 334 Ill. App. 268, 79 N.E.2d 301.) In view of this contradictory evidence, we do not believe that plaintiff is bound by the remarks of Lowery.\nViewing all of the evidence in its light most favorable to the plaintiff, it is clear that there was evidence upon which a jury could find that the plaintiff was not contributorily negligent. Thus, we conclude that the trial court erred in directing a verdict for the defendant in this cause.\nFor the foregoing reasons, the judgment of the circuit court of Johnson County is reversed and this cause is remanded for a new trial.\nReversed and remanded.\nKARNS, J., concurs.", "type": "majority", "author": "Mr. PRESIDING JUSTICE GEORGE J. MORAN" }, { "text": "Mr. JUSTICE JONES,\ndissenting:\nI respectfully dissent.\nThree witnesses for the plaintiff, Ruby Lytle, Forest Campbell and Lottie Parker, testified that they did not hear the train whistle blow or its bell ring. They did not testify that the whistle did not blow and the bell did not ring. (Campbell testified that the whistle did not blow and the bell did not ring but he was squarely impeached by his deposition upon cross-examination and was never rehabilitated.) The cross-examiner was careful in having these witnesses differentiate between \u201cthe whistle didn\u2019t blow and the bell didn\u2019t ring,\u201d and \u201cI didn\u2019t hear the whistle blow or the bell ring.\u201d Thus, plaintiff failed to prove by these witnesses that the whistle did not blow and the bell did not ring.\nTo the contrary, the plaintiff himself testified that he heard the whistle blow when he was approximately one-half mile distant from the crossing. In addition to this the plaintiff called defendant Byron Lowery, the engineer, as a witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 60). Lowery testified that he both blew the whistle and rang the bell at the appropriate whistle post and in the directed manner. Not only is the engineer\u2019s testimony in this regard not contradicted, it is corroborated by the testimony of the plaintiff. Accordingly, the section 60 testimony of the engineer is binding on the plaintiff. Kapraun v. Kapraun (1957), 12 Ill. 2d 348, 146 N.E.2d 7; Chance v. Kinsella (1923), 310 Ill. 515, 142 N.E. 194; Cheek v. Avco Lycoming Division (1977), 56 Ill. App. 3d 217, 371 N.E.2d 994.\nThe majority states that there is circumstantial evidence which contradicts Lowery\u2019s testimony. They cite decedent\u2019s (slow) speed one-half mile from the crossing, her familiarity with the crossing and the extreme caution necessary to traverse the crossing. This evidence is not contradictory of the testimony of Lowery but a convolution of evidence of plaintiff\u2019s decedent\u2019s contributory negligence.\nThe majority rests its position upon the assertion that the crossing was obscured as a result of the fog, citing National Bank v. Norfolk & Western Ry. Co. That case is not in point for the obstructions to the crossing there involved consisted of trees, shrubbery and a house. In this case there were no tangible obstructions to the crossing; rather, all observation was limited by a generally prevailing fog. The railroad crossing was neither more nor less obscured than any other tangible object in the vicinity.\nDespite the foggy condition prevalent the train brakeman (present in the cab with the engineer) was able to see plaintiff\u2019s decedent\u2019s automobile approaching the crossing in time, and from a sufficient distance, to warn the engineer who then applied the emergency brake of the train when it was 200 feet distant from the crossing. Had she been in the exercise of ordinary care on the occasion, plaintiff\u2019s decedent would have been able to see the approaching train as easily as the brakeman saw her approaching auto. Plaintiff\u2019s decedent was certainly aware of the fog and was accordingly charged with the duty to exercise the extra degree of caution required.\nUnder the facts of this case the jury could not have concluded that no warning signals were given from the train or that plaintiff\u2019s decedent could not have seen and heard the approaching train in ample time to stop before she reached the crossing. Accordingly, the trial court was correct in directing a verdict for the defendants at the close of plaintiff\u2019s evidence because plaintiff\u2019s decedent was guilty of contributory negligence.\nI would affirm.", "type": "dissent", "author": "Mr. JUSTICE JONES," } ], "attorneys": [ "Joseph L. Fribley, of Fribley, Fribley & Proffitt, of Pana, for appellant.", "August L. Fowler, of Fowler & Novick, of Marion, for appellees." ], "corrections": "", "head_matter": "HAROLD J. KNOTT, Adm\u2019r of the Estate of Loraine M. Knott, Deceased, Plaintiff-Appellant, v. CHICAGO & EASTERN ILLINOIS RAILROAD COMPANY et al., Defendants-Appellees.\nFifth District\nNo. 78-365\nOpinion filed June 28, 1979.\nJONES, J., dissenting.\nJoseph L. Fribley, of Fribley, Fribley & Proffitt, of Pana, for appellant.\nAugust L. Fowler, of Fowler & Novick, of Marion, for appellees." }, "file_name": "0707-01", "first_page_order": 729, "last_page_order": 735 }