The opinion
MR. JUSTICE UNDERWOOD, dissenting:
In my opinion the trial judge correctly granted defendant’s motion for judgment non obstante veredicto and that judgment should be affirmed.
I am not at all certain that the railroad was guilty of wilful and wanton misconduct. (Trumbo v. Chicago, Burlington & Quincy R.R. Co. (1945), 389 Ill. 213 ; Robertson v. New York Central R.R. Co. (1945), 388 Ill. 580 ; Overman v. Illinois Central R.R. Co. (1962), 34 Ill. App. 2d 30 .) But even if it were, the decedent’s reckless disregard for his own safety certainly reached the level of contributory wilful and wanton conduct precluding recovery.
The majority opinion emphasizes what it considers to be the dangerous nature of the crossing: no warning devices or signals and high weeds growing to within perhaps 10 feet of the tracks. It ignores the fact that this temporary crossing had been created without the railroad’s consent, and that those who used it were simply trespassers for whose use the railroad was under no obligation to improve the crossing or right-of-way.
Oswald Schlack, the driver of the truck which decedent was following, testified he stopped close to the track, looked and saw the train coming and continued on across the track. He did not know the distance at which the train was when he first saw it other than it was “very close.” Other witnesses gave varying estimates of the distances at which the train light was visible, and Carl Call, a co-worker with decedent and an eyewitness to the accident, testified he first heard the train whistle and saw its light when it was some 400 to 450 feet from the crossing. On this record there can be no doubt of the train’s visibility and that, had decedent looked before proceeding across the tracks, he would have seen it.
The trial judge gave as his principal reason for granting defendant’s motion for judgment n.o.v. the fact that the only explanation of decedent’s failure to see the train was that he didn’t look, and that conclusion seems to me inescapable. Given decedent’s familiarity with the dirt and gravel crossing, the foggy morning and the brush or weeds interfering with his view as he approached the tracks, the gravity of his disregard for his own safety at least equals that of defendant.
This court’s recent decision in Coleman v. Illinois Central R.R. Co. (1974), 59 Ill. 2d 13, 17 , emphasized what the majority opinion now overlooks. The court there said: “In prior decisions this court has consistently recognized the rule of law that railroad crossings are dangerous places and that in crossing them a person must exercise a degree of care commensurate with the danger to be anticipated. [Citations.] ”
Unless the majority is preparing to abandon the concept that the individual has some responsibility for his own safety, it seems to me that decedent’s reckless disregard for his own welfare constituted wilful and wanton misconduct precluding recovery.
I would reverse the appellate court judgment and affirm the judgment of the circuit court of Peoria County.
MR. JUSTICE RYAN joins in this dissent.