delivered the opinion of the court.
Yvonne Chapman and Mildred Márchese sued the Baltimore & Ohio Bailroad Company and Jay Bilthuis for injuries received in a railroad crossing mishap while guest passengers of Bilthuis, charging the corporation with negligence and Bilthuis with wilful and wanton misconduct. At the close of plaintiffs ’ evidence the court directed a verdict in favor of Bilthuis and entered judgment thereon. The case proceeded against the corporate defendant and resulted in verdicts of guilty, one assessing Miss Chapman’s damages at $5,000, and the other assessing Miss Márchese’s damages at $500. Judgment was entered on the verdicts. Subsequently, on motion of the railroad, the court entered judgment in its favor notwithstanding the verdicts, and also conditionally granted it a new trial. Plaintiffs appeal. For convenience we will call the railroad corporation the defendant and Bilthuis by his name. .
The injuries were sustained at about 2:00 a. m. Saturday, March 9, 1946, at a grade crossing on West 71st street, an east and west street in Chicago. The crossing is located about 3% blocks east of Western avenue. The B. & O. C. T. railroad tracks run north and south and cross 71st street at right angles. These tracks are used exclusively for freight traffic. At the time of the occurrence the crossing was not protected by any watchman, gate or flasher lights. Defendant’s freight train involved in the case started the evening of Friday, March 8, 1946, from Garrett, Indiana, on a regular run to Glen Yard, Chicago. The Glen Yard is located west of Brighton Park, Chicago, on the Alton line, the B. & O. turning off on the Alton tracks where, it crosses that line at about 40th street. Defendant’s train was operating over the right of way of the B. & O. C. T. The freight train was not running on a definite, schedule. It was proceeding north and consisted of a steam locomotive, 14 cars and a caboose. On the way to the Glen Yard the train was first reduced by setting off cars at the Barr Yard near 135th and Halsted streets. From there the 14 cars were to be taken tq Glen Yard, with 71st street, where plaintiffs were in7 jured, to be crossed on the way. The crossing at 71st street consists of .three tracks. From west to east they are ¡ abiding track; the southbound main and the north-; bound main. The train was traveling in the northbound main. The first north and south street, to cross 71st street east of Western avenue is Claremont avenue. Oakley avenue, a north and south street, crosses 71st street a block east of Claremont avenue, and Bell avenue, another north and south street, intersects 71st street a block east of Oakley avenue. From Bell avenue to the railroad crossing is another half block or so.
Plaintiffs live a half mile east of and were acquainted with the crossing. Bilthuis had attended high school in that neighborhood. He was familiar with the crossing and had traveled over it often. On Friday evening, March 8, 1946, Bilthuis, aged 21, accompanied by his friend Andrew Waitches, about 25 years old, called at the home of Yvonne Chapman, 18 years old, and her next door neighbor, Mildred Márchese, 20 years old. The four then left in a four-door 1941 Nash sedan automobile, driven by Bilthuis and owned by his father, to go skating at the Arena on the north side of Chicago. On the return trip from the Arena it was sleeting, turning to snow, and the roads were slippery and slick. The parties stopped at a restaurant near 47th and Western avenue, after which they proceeded south to 71st street, where they turned east. From the time they left the restaurant until the occurrence the weather was clear. Miss Chapman was sitting to the right of ■Bilthuis, the driver. Miss Márchese sat to the left of Waitches on the rear seat. At the time 71st street was icy. In this respect, however, it was no different from the other streets over which the parties had traveled.
Bilthuis testified that his highest speed on 71st street was 15 to 25 miles an hour. He said his car did not tend to slide around because it was not going fast. The car had sealed beam headlights. When the car was traveling on 71st street they were adjusted for country driving and threw a beam of light for about a block. He said that the brakes were in good working order.
Photographs as to the conditions surrounding the crossing were introduced by the respective parties. These show that the distance from the east curb of Bell avenue to the tracks is about 250 feet and that the paved portion of Bell avenue is 30 feet wide. The intervening natural terrain for at least two or three blocks south of 71st street is level. The tracks, however, run on an artificial embankment, which at 71st street is about eight feet high. Consequently, 71st street is so graded as to carry the roadway up to the top of the embankment. The resulting incline of the street, as one proceeds east, begins a short distance east of Bell avenue and ends just before the first (west) track is reached. The crossing itself is level. The tracks run slightly uphill as they come north. At 71st street and for two or three blocks to the south the area between Bell avenue and the tracks contains no buildings, trees, bushes or other obstructions. At the west side of Bell avenue is a “slow” sign for eastbound traffic. A photograph shows a square sign with its post embedded in the south parkway of 71st street about a third of the way, as one travels east between Bell avenue and the crossing. A crossing (crossbuck) sign was located 15 feet and 11 inches west of the west rail of the first (siding) track and 7 feet south of what would be the south curb of 71st street. A motorist driving east on 71st street would first observe the “slow” sign on the west side of Bell avenue, then the square sign east of Bell avenue and lastly the crossbuck sign.
Bilthuis testified that he did not see any headlights ; that he did not see any light toward the south or any train approaching; that he was listening for a whistle or a bell; that he did not hear any; that he continued to listen for a whistle or bell until he got up to the tracks; that he heard neither during that time; that he came upon the crossing at a speed of 15 miles an hour; that the locomotive was moving up 5 or 10 feet south of the south crosswalk when he saw it; that the first thing he saw was the numeral lights of the engine on the side up near the smokestack; that he could not see the headlight apparatus; that there was no glare on the tracks ahead of the engine; that at the first sight of the illuminated numerals the front of his car was 15 feet from the track the train was on; that as soon as he saw the engine he applied the brakes; that the car started to slide; that it slid about 5 feet with the brakes on; that then, because of the sliding, he released the brakes and cut the wheel a little bit to the north; and that the car “sort of responded” to the turn of the steering wheel and the side of the engine caught the right front of the automobile, tore off the hood and twisted the car around so that it stopped facing west. What distance, if any, the car moved between the cut of the wheel and the impact does not appear. At the time of the impact the car was a few feet out of its original path and part of the car was on the north half of the pavement. After the occurrence the car was on the gravel north of the pavement. An exhibit shows that the whole front of the car was crushed back and somewhat from right to left. The point of impact on the locomotive was somewhere along the left side a little ahead of the cab. Bilthuis said his car did not stop from the time he first saw the train until the impact and that the reason was that the car was sliding and skidding on the ice. Miss Chapman was thrown out of the car and beneath it and Miss Márchese was thrown from the rear seat to the floor. When it stopped, the rear of the train was about four car lengths north of ,71st street.
The first point advanced by plaintiffs is that they made out a prima facie case against the defendant railroad and that the court erred in entering judgment in its favor notwithstanding the verdicts. Defendant maintains that it was entitled to judgment notwithstanding the verdicts; that the sole proximate cause of plaintiffs’ injuries was the conduct of Bilthuis in taldng the automobile into the side of defendant’s engine; that there was no evidence tending to show that it was guilty of any negligence; that plaintiffs were not in the exercise of due care for their own safety; and that the icy condition of the street was the proximate cause of their injury. By a motion for judgment notwithstanding the verdict the sole question presented to the court is whether, admitting the evidence in favor of plaintiffs to be true, that evidence, together with all legitimate conclusions and inferences, fairly tends to sustain their cause of action. In deciding such a motion the court has no right to pass upon the credibility of the witnesses, to consider any purported impeachments, the weight thereof, or the weight of the testimony. Vieceli v. Cummings,
In their complaint plaintiffs allege that they were in the exercise of due care for their safety at and about the time complained of. This allegation is a material averment which they must prove affirmatively in order to recover. Defendant contends that this proof was wholly lacking. There was evidence that for the greater part of a distance of more than 250 feet before reaching the crossing each of the plaintiffs looked to the south for a headlight or other indication of any train and listened for a bell or whistle. They saw no light and heard no sound. Since their view of the track to the south was unobstructed it is a legitimate inference in their favor that the approaching train bore no light and emitted no bell or whistle signal. Bilthuis also testified that although he looked, he saw no train or headlight from a train until he was 15 feet from the northbound track. Defendant states that Bilthuis and plaintiffs had a good view and that the numeral lights on the side of the engine were moving up toward the crossing in the stretch of right of way where the view was so unobstructed; that Bilthuis and plaintiffs could have seen the numeral lights on the side of the engine as the automobile moved eastward between Bell avenue and the crossing had they looked; and that the reason for these parties not seeing the headlight of the engine was because no one was looking ahead or to the side for it. The numeral light was small and dim and especially so in comparison with a standard locomotive headlight. Whether the parties could see the light would be a question of fact for the jury. We cannot say that all reasonable men would agree that such a light could be seen as the automobile proceeded from Bell avenue. By custom the approach of an engine in the nighttime is heralded by a reasonably strong headlight. In support of its position defendant cites Dee v. City of Peru,
“The law will not tolerate the absurdity of permitting one to testify that he looked and did not see the danger when the view was unobstructed, and where, if he had properly exercised his sight, he could have seen it.”
In that case the driver of the car, George Schuets, with Joseph G. Dee, the decedent, as a passenger, drove the car off a bridge into the Illinois River at Peru through an opening occasioned by the bridge draw-span. It was undisputed that on approaching the bridge the gate, when closed, was fully visible for a distance of more than 100 feet. The car traveled at least 90 feet after the gate came into full view to the point where Schuets stated he saw it. He stated that he did not see the gate until he got within 20 feet of it and that he was going 30 to 35 miles an hour. The court said that Schuets and the decedent had an unobstructed view of the approach to the bridge and the obstruction across the roadway for a distance of at least 110 feet; that the car at a speed of 35 miles an hour could be stopped by application of the brakes in a distance of 50 to 55 feet; and that with the clear vision of the barrier across the bridge, a distance of 110 feet was ample to stop the car going at that rate of speed before the gate was reached. In the case at bar the plaintiffs looked and listened. The mishap in the Dee case occurred in the daytime. Furthermore, the gate was visible to the driver for a distance of 110 feet in ample time to stop the car. We have read the other cases cited by defendant and in our opinion they are inapplicable to the factual situation presented to us. We are satisfied that, viewing the evidence in its aspect most favorable to the plaintiffs, there was prima facie proof of the exercise of due care by plaintiffs.
We turn to the contention of plaintiffs that there was sufficient evidence to justify the jury in finding that the negligence of defendant was a proximate cause of the injuries. Defendant states that there was no evidence tending to show that it was guilty of any negligence, and that the sole proximate cause of plaintiffs’ injuries was the conduct of Bilthuis in taking the automobile into the side of the engine. There was evidence that the engine approached the crossing without a headlight burning and without emitting the statutory signals. The violation of a statute is prima facie evidence of negligence. Wise v. Kuehne Mfg. Co.,
It was incumbent on plaintiffs to prove that the negligence of defendant was a proximate cause of their injuries. Proximate cause is defined as “any cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of and without which the result would not have occurred.” 45 C. J. § 477, Negligence. To constitute proximate cause, a negligent act or omission need not be the sole cause. 45 G. J. § 485. If the negligent act or omission is an efficient cause, such act or omission is actionable as a proximate cause, even though other causes, not attributable to plaintiff, combined with such negligence to produce the ultimate result. Pullman Palace Car Co. v. Laack,
When Bilthuis first saw the engine the front of his car, under the evidence most favorable to plaintiffs, was only 15 feet from the track the train was on. At 15 miles an hour the automobile was moving at the rate of approximately 22 feet a second. In two-thirds of a second, therefore, he would reach the track, and the engine, traveling 40 to 50 miles an hour, was only 20 or 30 feet away, so that it would intersect the path of the automobile before the latter would reach the track. There was no possibility that the automobile could cross the track in safety ahead of the train. Plaintiffs and Bilthuis were thus placed in a position of peril. The peril consisted of two elements— the location of the automobile and the fact that it was in propulsion at the rate of 22 feet a second. The momentum of the automobile, as well as its nearness to the track, were both an effect of defendant’s invitation, or, in other words, of its negligence." Until that momentum could be arrested by the exercise of due care under the circumstances then and there existing, including the presence of the ice, every foot that the automobile traveled as a result of that momentum was a continuing effect of defendant’s negligence. The evidence favorable to plaintiffs is that Bilthuis did exercise due care to arrest or divert that momentum, but was unable to do so, and that the momentum carried the automobile into the side of the engine. By a natural and continuous sequence that could have been foreseen and guarded against by defendant, the unsignaled approach of the unlighted train was either the sole cause of plaintiffs’ injuries, or at least a cause that directly contributed to cause such consequences. In Miller v. Union Pac. R. Co.,
Defendant asserts that the icy condition of the street was the proximate cause of plaintiffs’ injury. The existence of proximate cause precludes the possibility of superseding cause. Belcher v. Citizens Coach Co., Inc.,
The intervention of the intermediate force must have been unforeseeable to the original wrongdoer by the exercise of due care. If the intervention of a new factor was in itself foreseeable, then of course such factor becomes simply an intermediate effect, and in turn an intermediate cause, in the chain of causation. In McClure v. Hoopeston Gas & Electric Co., supra, the court at page 104 adopted the following statement from 22 R C. L. 134:
“Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequences, and if they are such as might with reasonable diligence have been foreseen, the last as well as the first, and every intermediate result, is to be considered in law as the proximate result of the first wrongful cause.”
The defendant should have known that a motorist, unwarned of the approach of a train in the nighttime, will proceed up to and start across the tracks at a grade crossing under the assumption that no train is in fact approaching. Defendant cannot say that the intervention of the ice was unforeseeable. It is foreseeable that the motorist, acting out of superior caution and with no assistance from the railroad, might ultimately see the unlighted, unsignaled train approaching. When the pavement is icy the zone of peril is naturally wider than when the pavement is dry, and an automobile cannot be stopped so quickly on ice as on dry pavement. On a night when the pavement is icy the omission of signals may cause an accident that might not have occurred had the pavement been dry. That fact, however, was not beyond the comprehension or foresight of defendant. Hence, the movement of the automobile on the ice was foreseeable and it cannot be deemed a superseding cause. The superseding cause must be an “efficient cause.” Heiting v. Chicago, R. I. & P. R. Co.,
Counsel for defendant places great reliance on Rerg v. New York Cent. R. Co.,
“The undisputed facts lead to the conclusion that the icy condition of the street was the proximate cause of the injury and not defendant’s wrongful act. Under such circumstances there was no question of fact for the jury.”
In that case the negligence alleged was the failure to sound whistle or bell. The headlight on the engine was burning and the occupants of the automobile, who were familiar with the crossing, knew they would have and in fact did have, a clear and unobstructed view of the lighted engine beginning at a point when the automobile was 76 feet from the crossing. There is no mention in the opinion of the Appellate Court (
Plaintiffs urge that the evidence presented a fair question of fact, unaffected by any error of law; that no irregularity intervened; that the verdict was conclusive; and that the court erred in conditionally granting a new trial. Defendant insists that the conditional allowance of its motion for a new trial was proper on the ground that the verdicts were against the manifest weight of the evidence, and that the damages allowed were excessive. The court acted under Supreme Court Buie 22 [Ill. Rev. Stat. 1949, ch. 110, par. 259.22; Jones Ill. Stats. Ann. 105.22], which provides that an appeal from a judgment granted on a motion for judgment notwithstanding the verdict, shall, of itself, without the necessity of a cross-appeal, bring up for review the ruling of the trial court on such motion for a new trial, and the reviewing court shall, if it reverses the judgment entered notwithstanding the verdict, review and determine the validity of the ruling on the motion for a new trial. Prior to the adoption of the Civil Practice Act there was no appeal from an order allowing a new trial. Under Sec. 77 of that Act [Ill. Rev. Stat. 1949, ch. 110, par. 201; Jones Ill. Stats. Ann. 104.077] an appeal from an order granting a new trial may be sought by a petition presented to the reviewing court within 30 days after the entry of the order, or within any extended period granted within such 30-days, or any further extension thereof. Where a conditional new trial is granted under Buie 22 the appeal from the judgment granted on motion for judgment notwithstanding the verdict brings up for review the ruling of the trial court on the motion for a new trial without the necessity of a cross-appeal and without the procedure outlined in sec. 77 of the Civil Practice Act. The engineer, fireman and brakeman testified that a bright headlight was showing for the crossing; that the automatic bell was ringing on the engine at the timé; and that the engineer whistled for the crossing all the way up to it from about 1,500 feet back. Under sec. 68 of the Civil Practice Act [Ill. Rev. Stat. 1949, ch. 110, par. 192; Jones Ill. Stats. Ann. 104.068] judgment may be entered on the return of the verdict. Either party may move for a new trial or in arrest of judgment or for judgment notwithstanding the verdict. He may do so before the final judgment is entered or within 10 days thereafter, or within snch time as the court may allow on motion made within such 10 days. In our opinion the fact that the judgment was entered on return of the verdict and prior to the filing of the motion for a new trial does not affect the discretionary power of the court to grant a new trial. In Gavin v. Keter,
“If judgment had been entered upon the verdict and the appellees were here claiming that the evidence did not warrant the verdict, the question of the preponderance of the evidence would not arise in this court and we would not be warranted in disturbing the verdict of the jury unless the verdict was clearly against the manifest weight of the evidence. But under the new Practice Act, . . . this appeal concerns the action of the trial court in granting a new trial. A trial court has more latitude than this court in passing upon the verdict of a jury. The allowance or refusal of a new trial on the weight of the evidence is peculiarly within the discretion of the trial court and he is warranted in granting a new trial if a plaintiff has failed to sustain his claim by a preponderance of the evidence. In passing upon the question as to whether or not the trial court in such case was justified in granting a new trial, we must bear in mind that there are many things which a trial judge observes on a trial that do not appear from the printed record, — the appearance of a witness, his or her manner in testifying, and other circumstances that greatly aid the trial court in determining the credibility of a witness and the weight, if any, that should be attached to his or her testimony. After a careful consideration of the oral and documentary evidence in this case, we have reached the conclusion that we would not be justified in setting aside the order of the trial court granting the defendants (appellees) a new trial.” In Barthelman v. Braun,
‘ ‘ The trial court is given discretion in passing upon a motion for a new trial and it is the duty to carefully weigh the' evidence, and if it is his judgment that the verdict of the jury is not in accord with the weight of the evidence, he should grant a new trial. The trial court is generally in a better position to pass on the weight of the evidence than the Appellate Court, because he has the opportunity to see the witnesses and observe their conduct and demeanor while on the witness stand.”
In Parke v. Lopez,
“In granting motions for a new trial, it is largely discretionary with the trial court whether he shall, or shall not grant the same. In the present case it seems to us that the trial court properly exercised his discretion and granted the plaintiffs a new trial.”
In Lepkowski v. Laukemper,
“A court of review will not interfere with an order granting a new trial based on disputes as to the facts, unless the record shows a clear abuse of discretion.”
See also Sedgwick v. Sedgwick,
Plaintiffs maintain that the testimony of the engineer called as a witness by plaintiffs made out a prima facie case of wanton misconduct on the part of the defendant Bilthuis, and that the court erred in directing a verdict in favor of defendant at the close of plaintiffs’ evidence. In apt time plaintiffs filed a motion for a new trial as to Bilthuis and such motion was subsequently denied. The charge against Bilthuis was that he was guilty of wilful and wanton misconduct. At the time the verdict was directed in his favor there was in the record the testimony of the engineer that the train approached the crossing with the headlight burning, whistle sounding and bell ringing. If that were true, then since Bilthuis had an unobstructed view of the track for over 1,500 feet, there was evidence that might warrant the jury in finding him guilty of wilful and wanton conduct in traveling upon the crossing and subjecting plaintiffs to injury. Bilthuis states that reasonable minds could not differ that his conduct, characterized under oath by plaintiffs as blameless, was not wilful and wanton. Our view is that there was evidence to make out a prima facie case of wilful and wanton misconduct against Bilthuis. He also asserts that if there is found any evidence in the plaintiffs’ case of wilful and wanton conduct on his part, then on the same evidence the plaintiffs were guilty of the same misconduct and the trial court properly directed the jury to return a verdict finding him not guilty. The opportunity of Miss Márchese, who was in the rear seat, to observe was not equal to that of Bilthuis. That Miss Chapman in the front seat had an equal opportunity to see the headlight, is a factual assumption. A driver synchronizes his speed to the time, place and duration of his observation, not to that of his passenger. The car is responsive to the driver’s will. Consequently, the driver is enabled to make his observation at as slow a speed as he finds necessary, and the observation and the slow speed can both be prolonged until he is satisfied. Not forewarned as to what will be the minimum speed, nor the duration of it, the passenger makes his observation under difficulties. It is disconcerting to a driver to have a passenger suggest how he shall drive. Unless the passenger sees an obvious danger which the driver might not see, there would be no duty on the passenger to warn the driver. In the instant case neither the passengers nor the driver saw the train until they were a few feet from it. Miss Chapman testified that she had seen Bilthuis look for a train. She had a right to assume that he was looking carefully and to relax her own diligence accordingly on the assurance that he was watching out for her safety. She was a passenger, having no control over the operation of the automobile. In Dees v. Moore,
“ ‘What conduct on the passenger’s part is necessary to comply with his duty must depend upon all the circumstances, one of which is that he is merely a passenger having no control over the management of the vehicle in which he is being transported. Manifestly, the conduct which reasonable care requires of such a passenger will not ordinarily, if in any case, be the same as that which it would require of the driver. While the standard of duty is the same, the conduct required to fulfil that duty is ordinarily different because their circumstances are different.’ ”
In Rhoden v. Peoria Creamery Co.,
“A passenger riding as an invited guest in an automobile is only required to exercise such care as the exigencies of the situation required; in other words, such guest is bound to use such care and caution as a person situated in like circumstances would exercise. Fredericks v. Chicago Rys. Co.,
We are of the opinion that the court erred in directing a verdict for Bilthuis. For the reasons stated the judgment of the superior court of Cook county is reversed and the cause remanded with directions to proceed in a manner not inconsistent with the views expressed.
Judgment reversed and cause remanded with directions.
Lewe, P. J., and Kilby, J., concur.