The opinion
BURMAN, J., dissenting:
I cannot agree with the conclusion reached by the majority of the Court that the plaintiff failed to establish that he had exercised due care or that the plaintiff failed to make out a prima facie case giving rise to a reasonable inference that the defendant was guilty of negligence.
The plaintiff testified at the trial that the collision in which he and the defendant, Belt Railway Company, were involved occurred in a heavily industrial area. The plaintiff stated that in order to reach his destination, he had to cross four sets of railroad tracks, crossing Lavergne Avenue within this area. Plaintiff said that he had passed through the crossing at least a hundred times prior to the collision and that he had never encountered a locomotive on the tracks until the evening in question. After setting the time of the collision at about 7:00 p. m., the plaintiff said that he had turned on his headlights because of the darkness and that he had turned on his windshield wipers because it was “misting rain and drizzling.” He further stated that he was following about twelve cars and that the same number were following him. The plaintiff said that when he came to the crossing he stopped his car at the stop sign, turned, looked both ways, and not seeing an approaching train proceeded forward. As the plaintiff approached the third set of tracks he was struck by defendant’s locomotive and was injured. The plaintiff said that he neither heard a bell or whistle nor saw a light on the locomotive. Also, there was no artificial illumination at the crossing—no streetlights, factory lights, blinking signals or crossing gates. The record reveals that the defendant’s diesel locomotive was not attached to any cars and was in the process of backing up from a factory entrance along a curving track when it collided with the plaintiff’s car. A flagman was not present at the crossing although there were four men on the locomotive. A police officer testified that the traffic was quite heavy before and after the time of the collision.
Edward Dean, a conductor on the locomotive and the person directing its operation, testified on cross-examination that when the locomotive was fifty to seventy-five feet from Lavergne Avenue he saw a car go across the crossing in a northerly direction. At that moment the conductor stated, he also saw the plaintiff’s car turning the corner of 67th and Lavergne Avenue. From that time until the moment of impact, the conductor testified that he did not take his eyes off the plaintiff’s car.
The defendant takes the position that “ [t] he prime controversy is whether the defendant had a light on the train, blew a whistle or sounded a bell.” Apparently, if any of these elements were present the plaintiff would be barred from recovery, because warned of the locomotive’s presence he nevertheless proceeded through the crossing, thus failing to exercise due care. The defendant maintains that because the “[pjlaintiff’s testimony as to the light, whistle and bell is negative in character” and the plaintiff’s testimony was countered by positive testimony from the defendant’s witnesses, the plaintiff failed to raise an issue of fact about the absence or presence of the light, whistle or bell, and the question should not have gone to the jury.
The defendant cites Berg v. New York Cent. R. Co., 391 Ill 52, 62 NE2d 676 , in support of his theory. In Berg, the Illinois Supreme Court was asked to determine “whether the negative testimony of plaintiff’s witnesses may be considered as proving, or tending to prove, that no warning was given of the approach of the train by sounding of a bell or whistle.” Although the Court considered this question holding “that negative evidence is admissible where the attending circumstances are such as to show that it has some probative force” and that “[t]here was a conflict in the evidence on this issue [whether a warning was given] and its weight was for the jury” 1 the Supreme Court held that the icy condition of the street was the proximate cause of the plaintiff’s injury, not the defendant’s wrongful act, and under such circumstances there was no question of fact for the jury.
I fail to see how the Berg case supports the defendant’s contention in the case at bar. Rather, the dicta relied on by the defendant appears to bolster the plaintiff’s claim that he presented a prima facie case even though he used negative testimony. I believe that the record in the instant case reveals that the attending circumstances were such as to show that the plaintiff’s negative testimony had some probative force and thus there was a question of fact for the jury to consider. Furthermore, I do not believe that the jury’s determination on the conflicting evidence should be disturbed by this Court. As stated in Bunton v. Illinois Cent. R. Co., 15 Ill App2d 311, 323, 146 NE2d 205 :
The jury saw and heard the witnesses. Where disputed questions of fact are presented to a jury and the jury passes upon them, unless palpably erroneous, the finding of fact will not be disturbed by the reviewing court. It is not the province of the court to substitute its judgment for that of the triers of the fact, where there is a conflict in the evidence. It is the province of the jury alone, to determine the weight and the credibility of witnesses. To be against the manifest weight of the evidence requires that an opposite conclusion be clearly evident.
I am of the opinion, after examining the record in this case, that the actions of the trial judge who saw and heard the witnesses and who denied the defendant’s post-trial motions after receiving the jury’s verdict were correct and should have been affirmed.
The Court was of the opinion that “[t]he negative testimony of plaintiff’s witnesses was sufficient to sustain the finding of negligence when attacked by a motion for judgment non obstante veredicto.”