MERVIN TUCKER, Appellant,
v.
NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, Appellee.
Supreme Court of Illinois.
*533 WILLIAM L. TURNER, of Shelbyville, and EARL S. HODGES, of Springfield, (DUANE L. TRAYNOR, of counsel,) for appellant.
BAKER and BAKER, of Shelbyville, and POPE and DRIEMEYER, of East St. Louis, (JOHN J. BAKER, and FRANK M. RAIN, of counsel,) for appellee.
Judgment affirmed.
Mr. CHIEF JUSTICE DAVIS delivered the opinion of the court:
This is an action for personal injuries sustained by plaintiff when the truck he was driving collided with defendant's freight train at a grade crossing. The jury rеturned a verdict for plaintiff in the sum of $12,250 and the trial court entered judgment thereon. The Appellate Court reversed this judgment on the ground thаt the trial court should have allowed defendant's motion for a directed verdict because plaintiff was guilty of contributory negligence as a matter of law. We granted leave to appeal from the judgment of the Appellate Court.
*534 The determinative quеstion presented to us is whether the evidence, taken most favorably to the plaintiff, shows that he was guilty of contributory negligence as a matter of law. While this court is precluded from weighing the evidence, except as to equitable issues, to determine where thе preponderance lies, (Ill. Rev. Stat. 1955, chap. 110, par. 92(3)(b),) where a motion is made in the trial court to direct a verdict, we may еxamine the evidence to determine whether, as a matter of law, there is any evidence in the record to prove the еssential elements of the case. Robinson v. Workman,
Plaintiff contends that his testimony, a plat, and a profile map of the crossing, raise a question of fact for the jury as to his exercise of due care. In considering this contention we have examined the entire record.
Thе rule of law, to be applied in determining whether the trial court should have directed a verdict for the defendant, is clear. A motion for a directed verdict should be allowed if, when all the evidence is considered, with all reasonable inferences to be drаwn therefrom in its aspects most favorable to the party against whom the motion is directed, there is a total failure to provе one or more essential elements of the case in the case at bar, the element of due care. Carrell v. New York Central Railroad Co.
The plaintiff testifiеd that on September 4, 1953, he was driving a truck, picking up milk; that about 8:00 A.M., while driving 20 to 25 miles per hour, he approached the grade crossing in quеstion in open country; that he had crossed at this particular point every day for about nine months; that the day was cloudy, with a little mist аnd fog, but the visibility was about two miles; that he looked north-easterly, to the right, and saw telephone poles and timber *535 about a quarter оf a mile down the track; that he drove his truck up to 9 or 10 feet from the south rail of the track, stopped, scooted over to the right door, rolled the window down and looked to the right; that he saw the telephone lines, railroad tracks, the top of the telephone shack and sprouts and weeds, as he looked down the track, but did not see or hear any train; and that he then rolled up his window, sсooted back in his seat and started across the tracks when the train, approaching from the northeast, hit the rear end of his truck. On cross-examination he testified that the telephone shack was located near the track about 275 feet northeasterly from the crossing; and that when he looked to the right from the truck window, while stopped, he could see at least 200 feet beyond the tеlephone shack.
We find no other testimony in the record to either corroborate or add to the foregoing testimony as to plaintiff's due care. While it is true that plaintiff's witness Earl Endsley and defendant's witnesses Berl Waters and Carlos Lloyd were eyewitnesses of the collision, yet their testimony fails to substantiate due care on the part of the plaintiff. The physical conditions at the crossing arе shown by a plat and profile map offered by plaintiff, and by eight photographs submitted by defendant. All exhibits were admitted in evidence by stiрulation.
There is no substantial dispute as to the governing rules of law in the case before us. It is well settled that railroad crossings are dаngerous places, and that in crossing them a person must approach the track with a degree of care proportionate to the known danger. The law requires that the traveler make diligent use of his senses of sight and hearing and exercise carе commensurate with the danger to be anticipated. (Moudy v. New York, Chicago and St. Louis Railroad Co.
There is no fact shown in the evidence that would tend to distract or confuse the plaintiff, or lull him into a false sense of safety. Acсording to his testimony, he was thoroughly familiar with the crossing, approached it cautiously, and gave his full and undisturbed attention to ascertаining the possible approach of a train. The only question is whether there was any obstruction to view which would either excuse his fаilure to look, or at least render plausible his assertion that he looked but did not see the train.
The testimony in the record fails to show such obstruction. But plaintiff earnestly contends that the profile map and plat show a cut or hollow that would obstruct the apрroaching 48-car freight train from view when he looked to his right 9 or 10 feet from the track.
Because of this contention we have meticulously examined all the exhibits, both in the record and as reproduced in the abstract. The photographs clearly show that the plaintiff, while sitting in his truck at points 10 and 17 feet from the south rail of the track, had a clear and unobstructed view of any approaching train for one fourth of a mile northeast of the crossing. Neither the plat nor the profile map are in conflict with this obvious physical fact.
From a review of the entire record, we find neither evidence nor any legitimate inference which may legally be drawn thеrefrom, which would either excuse plaintiff's failure *537 to look, or convince a reasonable mind that he looked but did not see the train. The record is without evidence of due care, and consequently the plaintiff was guilty of contributory negligence as a mattеr of law. "Contributory negligence becomes * * * a question of law when it can be said that all reasonable minds would reach the cоnclusion, under a particular factual situation, that the facts did not establish due care and caution on the part of the person charged therewith. [Citations] In such cases, the court should instruct the jury to render a verdict for the defendants." (Briske v. Village of Burnham,
Judgment affirmed.