Opinion
No. 11567 Judgment affirmed.
November 1, 1972.
APPEAL from the Circuit Court of Champaign County; the Hon. BIRCH E. MORGAN, Judge, presiding.
Phillips, Phebus, Tummelson Bryan, of Urbana, and Hatch, Corazza, Baker Jensen, of Champaign, (Joseph W. Phebus and Harold L. Jensen, of counsel,) for appellants.
Summers, Watson and Kimpel, of Champaign, for appellee.
This action was brought by the plaintiff against the Penn Central Transportation Company and Catherine R. Thompson for personal injuries and property damage sustained by the plaintiff on October 27, 1968, when she drove her automobile into an area of smoke on U.S. Highway 150 just west of the Village of Mansfield, Illinois, which highway is adjacent to the railroad's right-of-way and tracks. Both defendants were charged with negligence; a jury verdict was returned in favor of the plaintiff in the amount of $5,000; and judgment was entered upon that verdict against both defendants. This appeal is from the judgment thus entered.
A train of the defendant Penn Central Railroad traveling west on its tracks allegedly set fire to certain weeds and grass along the railroad tracks. Smoke from the fire covered various areas of the highway. The defendant Thompson was traveling east on 150 and stopped on the pavement after going part way through the smoke. Another eastbound car stopped behind the Thompson automobile. Plaintiff, who was driving her car, also in an eastbound direction, collided with the second car. Plaintiff in her testimony stated that when she realized how dense the smoke was, she applied her brakes but did not see the second car until the collision occurred. The collision occurred when the plaintiff had traveled about six car lengths into a patch of smoke.
The issues presented by this appeal are whether or not the plaintiff was contributorily negligent as a matter of law; whether the conduct of the defendant Thompson was negligence as a matter of law; and, finally, whether the evidence supports a finding that the defendant railroad was the source of the fire and whether its conduct was negligence.
• 1-3 Within the context of the familiar rule announced in Pedrick v. Peoria Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504, the issues in this case were properly submitted to and resolved by the jury. It cannot be said from the evidence in this record that the issue of negligence and contributory negligence was one of law as to warrant a judicial determination rather than a factual issue for the jury. See Atwood v. C.M. St. Paul R.R. Co., 313 Ill. 59, 150 A.L.R. 371.
Our examination of this record leads us to the conclusion that no error of law appears; that an opinion would have no precedential value; and that the judgment entered upon the verdict of the jury is fully sustained by the evidence. Thus, in accordance with the provisions of Supreme Court Rule 23, the judgment of the circuit court of Champaign County is affirmed.
Judgment affirmed.
TRAPP, P.J., and SIMKINS, J., concur.