{ "id": 5646960, "name": "Bert Moudy, Appellee, v. New York, Chicago and St. Louis Railroad Company, Appellant", "name_abbreviation": "Moudy v. New York, Chicago & St. Louis Railroad", "decision_date": "1942-10-29", "docket_number": "Gen. No. 9,352", "first_page": "154", "last_page": "161", "citations": [ { "type": "official", "cite": "317 Ill. App. 154" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "209 Ill. 302", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3300212 ], "opinion_index": 0, "case_paths": [ "/ill/209/0302-01" ] }, { "cite": "303 Ill. 89", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5005848 ], "opinion_index": 0, "case_paths": [ "/ill/303/0089-01" ] }, { "cite": "300 Ill. App. 498", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3235191 ], "opinion_index": 0, "case_paths": [ "/ill-app/300/0498-01" ] }, { "cite": "295 Ill. 78", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5065179 ], "opinion_index": 0, "case_paths": [ "/ill/295/0078-01" ] }, { "cite": "366 Ill. 330", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2578404 ], "pin_cites": [ { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/ill/366/0330-01" ] }, { "cite": "195 Ill. 156", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5585014 ], "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/ill/195/0156-01" ] }, { "cite": "343 Ill. 36", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5254332 ], "opinion_index": 0, "case_paths": [ "/ill/343/0036-01" ] }, { "cite": "365 Ill. 197", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2582777 ], "opinion_index": 0, "case_paths": [ "/ill/365/0197-01" ] }, { "cite": "106 Ill. 563", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2782078 ], "opinion_index": 0, "case_paths": [ "/ill/106/0563-01" ] } ], "analysis": { "cardinality": 551, "char_count": 10610, "ocr_confidence": 0.521, "pagerank": { "raw": 9.898492632084841e-08, "percentile": 0.5354412554554339 }, "sha256": "4b4d61183206c0e0755aa677260237bc1473b33e12e7e6bee27a8d0708318c5a", "simhash": "1:cc82d8c99ae52eff", "word_count": 1878 }, "last_updated": "2023-07-14T20:52:31.211272+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Bert Moudy, Appellee, v. New York, Chicago and St. Louis Railroad Company, Appellant." ], "opinions": [ { "text": "Mr. Justice Dady\ndelivered the opinion of the court.\nPlaintiff obtained a verdict and judgment for $5,000 for injuries resulting from a collision between his automobile and defendant\u2019s passenger train. Defendant appeals.\nThe charges of negligence were that defendant negligently permitted weeds and shrubs to grow on its right of way so that plaintiff in approaching the crossing in question was unable to see the approaching train, and that defendant ran its train on the crossing without blowing a whistle or sounding a bell as required by statute.\nThe first contention of the defendant is that the trial court erred in refusing to direct a verdict for the defendant at the close of all of the evidence on the ground that the evidence shows plaintiff was guilty of contributory negligence which proximately caused his injuries.\nIn passing on a motion for a directed verdict it is not within tha province of the trial judge to weigh the evidence and ascertain where the preponderance is. (Frazer v. Howe, 106 Ill. 563.) Whether a plaintiff was exercising reasonable care or was guilty of contributory negligence becomes a question of law only when the evidence is so clearly insufficient to establish due care that all reasonable minds would reach the conclusion that there was contributory negligence. A motion to direct a verdict for the defendant preserves for review only a question of law whether from the evidence in favor of the plaintiff, standing alone, and when considered to be true, together with the inferences which may legitimately be drawn therefrom, the jury might reasonably have found for the plaintiff. (Ziraldo v. W. L. Lynch Co., 365 Ill. 197.) When there is any evidence before the jury which taken with its reasonable inferences in its aspect most favorable to the plaintiff tends to show the use of due care, the question of due care is one for the jury. Whether there is any such evidence is a question of law. (Dee v. City of Peru, 343 Ill. 36.)\nIn Chicago, B. & Q. R. Co. v. Pollock, 195 Ill. 156, 163, the court said: \u201cWhat is required of one approaching a railroad track depends upon the circumstances of each case. Courts are not at liberty to say, as a, matter of law, that one must conduct himself in a particular manner and observe a certain line of conduct in each case and under all conditions. Negligence does not become a question of law, alone, unless the acts constituting it are of such a character that all reasonable men would concur in pronouncing them so. Human conduct must be judged by human standards. \u2019 \u2019\nIn passing on such contention of defendant, we will therefore state only the undisputed facts and the facts most favorable to the plaintiff.\nPlaintiff, aged 60 years, testified he thought his hearing was normal. There was no testimony as to his eyesight being other than normal.\nOn October 11, 1939, between \u2022 eight and nine a. m. he was driving a Ford sedan northerly on highway No. 115. The only other occupant of the automobile was killed in the accident. The sun was shining and the concrete pavement was dry.\nHighway No. 115 ran north and south. The tracks of defendant ran east and west and across the highway at apparently right angles. While crossing such tracks plaintiff\u2019s automobile was struck by or collided with a west bound train of defendant, the speed of the train being about 60 miles per hour, and the point of contact being at or about the left side of the cowcatcher on the locomotive.\nPlaintiff had previously driven over the crossing-many times but testified he did not previously know of obstructions to the view. He knew trains ran on the tracks and he knew about the morning passenger train, but did not know it was due at about that time.\nThere was evidence tending to show that on the southerly side of the right of way of the defendant there were weeds from five to six feet in height, that immediately south of the right of way there was a raise in the elevation of the ground, that there was growing thereon a field of standing corn, and such raise in the land and the weeds and corn obstructed the view of the plaintiff.\nPlaintiff testified he had had his brakes examined and tightened three days prior to the accident, that they were in excellent condition, and that he did not hear any bell or whistle and none was sounded.\nA witness for plaintiff testified that he arrived at the place of the accident shortly after the accident and that there was a skid mark on the pavement caused by the left tire of the car, showing a car had slid about 60 feet, the tire crossing the center of the pavement about the time it reached the railroad tracks.\nThere was testimony to the effect that one skid mark, instead of two, on a pavement indicates that the brake on only one side was taking- hold, and that the brake on the other side was not taking hold.\nThere were apparent inconsistencies in the testimony of the plaintiff, bnt construing his testimony most favorably to him, when about 300 to 500 feet south of the tracks he looked and listened; he looked and listened continuously from then on; when about 100 to 150 feet south of the crossing he decreased his speed from 30 to 12 or 15 miles per hour; in order to then get across the tracks \u201cimmediately,\u201d he then increased his speed to about 22 to 25 miles per hour; while driving at 22 to 25 miles per hour he first heard but did not see the train when he was about 60 feet from the crossing, and he then immediately applied his brakes \u201cwith all his might\u201d but the car then slid or skidded 60 feet further and was still moving when struck by the train, and he first saw the train when about 20 feet from the tracks.\nAssuming as true the testimony with reference to the brakes being repaired, with reference to the application of the brakes by the plaintiff, and with reference to the one skid mark, plaintiff was driving a car with brakes that were apparently defective, yet such evidence tended to prove that the plaintiff had used reasonable care to have his car provided with reasonably good brakes, to prove that he had used reasonable care in the application of the brakes, and to prove that he had reasonable grounds to believe and did believe he had good brakes.\nAlthough the plaintiff testified it would take 100 to 120 feet to stop his car at a speed of 20 to 25 miles per hour on a dry pavement with his brakes in good condition, and that he could not under such conditions stop a car within 15 to 20 feet, this was a mere expression of opinion, he was not bound by such testimony, and the jury was not bound to believe such testimony, but could rely on their own common knowledge. In Grubb v. Illinois Terminal Co., 366 Ill. 330, 334, the court said: \u201cIt is a matter of common knowledge that a small automobile of the type here involved, when going at the rate of twenty miles an hour with brake mechanism in good condition, can be stopped within a few feet.\u201d\nAssuming plaintiff\u2019s testimony as true, when 60 feet from the track he was listening and heard the train and at once used every effort to stop his car. He was then going at such a rate of speed, 22 to 25 miles per hour, that the jury would have been justified in believing that if his brakes had worked properly he could have stopped the car in much less than such 60 feet, but that the brakes failed to work through no negligence of the plaintiff.\nWe are of the opinion there was nothing in the evidence which would have warranted the trial court in finding, as a matter of law, that the plaintiff was not in the exercise of due care or was guilty of contributory negligence at or just prior to the time of the accident. The court therefore did not err in denying the motion for a directed verdict.\nFor the same reasons, the court properly denied defendant\u2019s motion for a judgment notwithstanding the verdict.\nThe overruling of defendant\u2019s motion for a new trial is next assigned as error.\nDefendant contends that, the verdict was against the manifest weight of the evidence. There was a sharp conflict in the evidence as to whether or not the defendant negligently permitted weeds and shrubs to grow on the right of way, as to whether or not the plaintiff\u2019s view was obstructed and as to whether or not a hell or whistle was sounded. We have carefully examined the evidence and cannot say that on any of these questions the verdict-is manifestly against the weight of the evidence. Where there is a contrariety of evidence and the testimony by fair and reasonable intendment will authorize the verdict, even though it may he supported by a lesser number of witnesses, a court of review will not set it aside. (Carney v. Sheedy, 295 Ill. 78.) Where a fair question of fact is raised by the proof this court has consistently held that the jury finding will not be set aside as against the manifest weight of the evidence. (Summers v. Hendricks, 300 Ill. App. 498.)\nDefendant contends that the trial court erred in giving certain instructions at the request of the plaintiff. It is said that instruction No. 4 limited the time in which the plaintiff was required to exercise care for his own safety to the time \u201cwhile crossing the defendant\u2019s railroad,\u201d without regard to plaintiff\u2019s conduct prior to the time the crossing was reached. The exact language of the instruction was that if the jury believed from the evidence a certain state of facts and that \u201cthe plaintiff was injured . . . while crossing the defendant\u2019s railroad, and while he was in the exercise of ordinary care for his own safety, . . . . \u201d We do not believe this instruction is subject to this criticism, and we do not believe that it in any way misled or misinformed the jury. Moreover instructions are to be considered as a series. (McClure v. Hoopeston Gas & Electric Co., 303 Ill. 89; Beidler v. King, 209 Ill. 302.) Plaintiff\u2019s instruction No. 11 fully informed the jury that \u201cordinary care\u201d and \u201cdue care,\u201d as mentioned in the instructions, \u201cis that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances as shown by the evidence in this case, at and immediately prior\" to the collision in question.\u201d\nPlaintiff\u2019s instructions Nos. 5 and 6 are also complained of, but we find no merit in the criticisms.\nThe judgment of the trial court is affirmed.\nAffirmed.", "type": "majority", "author": "Mr. Justice Dady" } ], "attorneys": [ "Thompson & Martensen, of Paxton, and Pope & Driemeyer, of East St. Louis, for appellant.", "S. H. Dilks and R. L. Schneider, both of Paxton, for appellee." ], "corrections": "", "head_matter": "Bert Moudy, Appellee, v. New York, Chicago and St. Louis Railroad Company, Appellant.\nGen. No. 9,352.\nOpinion filed October 29, 1942.\nRehearing denied February 2, 1943.\nThompson & Martensen, of Paxton, and Pope & Driemeyer, of East St. Louis, for appellant.\nS. H. Dilks and R. L. Schneider, both of Paxton, for appellee." }, "file_name": "0154-01", "first_page_order": 206, "last_page_order": 213 }