Molloy v. Chicago Rapid Transit Co.

• Decision Date: 07 June 1929
• Docket Number: No. 18121.,18121.
• Citation: 335 Ill. 164,166 N.E. 530
• Parties: MOLLOY v. CHICAGO RAPID TRANSIT CO.
• Court: Illinois Supreme Court

335 Ill. 164

166 N.E. 530

MOLLOY

v.CHICAGO RAPID TRANSIT CO.

No. 18121.

Supreme Court of Illinois.

April 20, 1929.

Rehearing Denied June 7, 1929.

Commissioner's Opinion.

Error to First Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Hugo Pam, Judge.

Action by Anna M. Molloy, as administratrix of the estate of Loretta Molloy, against the Chicago Rapid Transit Company. Judgment for plaintiff, and defendant brings certiorari.

Reversed and remanded.Gardner, Foote, Burns & Morrow, of Chicago (William A. Morrow and Walter M. Fowler, both of Chicago, of counsel), for plaintiff in error.

James C. McShane, of Chicago, for defendant in error.

PARTLOW, C.

Defendant in error, Anna M. Molloy, as administratrix of the estate of Loretta Molloy, deceased, obtained a judgment for $5,500 in the superior court of Cook county against plaintiff in error, the Chicago Rapid Transit Company, as damages for the death of her intestate. The judgment was affirmed by the Appellate Court, and the record is before this court on a writ of certiorari.

The deceased, a girl eight years old, was killed about 5 o'clock p. m., December 21, 1923, at the elevated station of plaintiff in error at Lawrence avenue, in Chicago, by being struck by a car and falling through the open space between the car and the platform to the track below. She lived with her parents about a mile north of Lawrence avenue, which is an east and west street. Since September, 1922, once a week from 4 to 5 o'clock p. m., she had attended a dancing academy on the south side of Lawrence avenue, east of the elevated railroad. She generally went from her home to the academy with her sister Jane, ten years old, who attended a music school at Lawrence avenue and Sheridan road from 4 to 4:30 o'clock p. m. On the day in question Jane went shopping, and the deceased went alone to her dancing school. When the lesson was over, about 5 o'clock, she went to the elevated station, and it is admitted by plaintiff in error that she was a passenger at the time she was killed. The elevated platform is on the west side of the track. It is about 355 feet long, 12 feet wide, and extends north and south. There are two stairways to the platform on the south side of Lawrence avenue. In the middle of the platform is a windbreak 32 1/2 feet long, extending north and south, and there is a space 6 feet wide between the windbreak and the east edge of the platform. The platform is 3 1/2 feet above the rails of the track, and the floor of the car was 4 1/2 inches higher than the top of the platform. There was a handhold 2 feet 7 inches long on the side of the car, extending up and down. It was made of steel, five-eighths of an inch in diameter, and all of its fasteners and contours were rounded. It was one foot ten and one-half inches from the top of the platform to the bottom of the handhold, which extended out from the side of the car 2 1/2 inches. There was a space 8 or 10 inches wide between the side of the car and the east edge of the platform. The train consisted of six cars and came from the south, going north. As it came into the station the deceased walked to the middle of the platform. After the first car had passed she started to run along with the train, evidently intending to enter between the first and second cars. The handhold on the north end of the second car was attached to the body of the car just south of the door. There were two women standing between the windbreak and the train. The deceased passed between the women and the train and was struck or caught by the front end of the second car. The train ran 20 or 25 feet after she was struck, her body dropped down between the car and the platform, her head remained above the platform until the opening between the second and third cars was reached, when she dropped onto the track, and she was under the front truck of the third car when the train stopped. The car which caused the injury had a sliding door, which was closed at the time of the accident.

The declaration consisted of two counts. The negligence charged in the first count was that plaintiff in error wrongfully and negligently caused and permitted the east edge of its platform to be and remain an unnecessary, unusual, and dangerous distance from the track, whereby persons who were on the platform in or about boarding or alighting from the cars were exposed to great, unusual, and unnecessary danger of slipping, stepping, or falling between the east edge of the platform and the side of a car while the car was being operated on the track past the platform. At the close of the evidence the court directed a verdict in favor of plaintiff in error under the first count, and cross-error has been assigned by defendant in error upon this ruling.

The negligence charged in the second count was that plaintiff in error wrongfully and negligently operated a certain car in the train with a perpendicular handhold at or near one end of the car, extending out beyond the side of the car such an unnecessary, unusual, and dangerous distance that it was liable and likely to strike or catch the clothing of persons while on the platform close to the side of the car, and as a direct result and in consequence of the handhold extending out beyond the side of the car the deceased was then and there struck and her clothing was caught by the handhold, and she was then and there thrown between the edge of the platform and the side of the car and fell through the space to and upon the tracks and sustained injury, from which she died.

It is insisted by plaintiff in error that the court at the close of all of the evidence should have directed a verdict in its favor upon the second count; that the evidence was not sufficient to justify the court in submitting to the jury the question of the alleged negligence of plaintiff in error and the question as to the proximate cause of the injury, and there was no evidence tending to show that the deceased and her mother were in the exercise of due care.

Where there is evidence in the record fairly tending to support the allegations of the declaration the case should be submitted to the jury. Devine v. Delano, 272 Ill. 166, 111 N. E. 742, Ann. Cas. 1918A, 689;Shannon v. Nightingale, 321 Ill. 168, 151 N. E. 573. All that the evidence tends to prove and all just inferences to be drawn from it in defendant in error's favor must be conceded to her. Under the rule the evidence most favorable to defendant in error must be taken as true. The credibility of the witnesses, the weight of the testimony, and the inferences to be drawn from facts proved are all questions for the jury to pass upon and not for the court to decide. Libby, McNeill & Libby v. Cook, 222 Ill. 206, 78 N. E. 599;McGregor v. Reid, Murdoch & Co., 178 Ill. 464, 53 N. E. 323,69 Am. St. Rep. 332. What is the proximate cause of an injury is ordinarily a question of fact for the jury. Phillabaum v. Lake Erie & Western Railroad Co., 315 Ill. 131, 145 N. E. 806. The question of the negligence of the deceased is also a question of fact to be determined from the age of the deceased, her capacity, intelligence, and experience. Deming v. City of Chicago, 321 Ill. 341, 151 N. E. 886. The question of the error in judgment of the mother in permitting the deceased to go to the station alone, if there was such an error of judgment, was not one of negligence as a matter of law. Wagner v. Chicago & Alton Railroad Co., 265 Ill. 245, 106 N. E. 809, Ann. Cas. 1916A, 778.

The negligence charged was that the handhold extended out beyond the side of the car an unreasonable, unnecessary, and dangerous distance, and that the clothing of the deceased was caught thereon, and as a result thereof she was killed. There was evidence showing that the handhold projected 2 1/2 inches at right angles from the car. It was 22 1/2 inches from the top of the platform to the bottom of the handhold. One witness testified that when he came onto the platform he saw the deceased standing at the top of the north stairway; that he next saw her running north on the platform, about opposite the front entrance of the second car; that she passed between two women and the side of the train, and at that instant she was struck by the front end of the second car and thrown backward, so that her back went flat against the side of the car, and she disappeared, with the exception of her head. Another witness testified that he was at the extreme north end of the platform when the train came in, and he noticed that the deceased was hooked onto one of the coaches. At first glance it appeared as if she were running, but, in fact, she was being dragged. She endeavored to keep her feet as far as she could, and then she fell through the opening between the cars and platform. There was other evidence tending to prove the allegations of the second count. This evidence fairly tended to prove the negligence charged. It was the duty of the court to submit the case to the jury, and no error was committed in the refusal of the court to direct a verdict.

While there was...