Petersen v. Elgin, A.&S. Traction Co.

• Decision Date: 19 February 1909
• Citation: 238 Ill. 403,87 N.E. 345
• Court: Illinois Supreme Court
• Parties: PETERSEN v. ELGIN, A. & S. TRACTION CO.

238 Ill. 403

87 N.E. 345

PETERSEN

v.ELGIN, A. & S. TRACTION CO.

Supreme Court of Illinois.

Feb. 19, 1909.

Error to Appellate Court, First District, on Appeal from Circuit Court, Cook County; A. H. Frost, Judge.

Action by Kristine Petersen, administratrix, against the Elgin, Aurora & Southern Traction Company. From a judgment of the Appellate Court for the First district affirming a judgment for plaintiff, defendant brings error. Affirmed.Hopkins, Peffers & Hopkins, for plaintiff in error.

Henry N. Miller and Lee Mighell, for defendant in error.

VICKERS, J.

Kristine Petersen, administratrix of the estate of Peter Petersen, recovered a judgment for $10,000 against the Elgin, Aurora & Southern Traction Company for wrongfully and negligently causing the death of the plaintiff's intestate. The judgment of the circuit court of Cook county having been affirmed by the Appellate Court for the First district, the defendant has sued out a writ of error from this court to bring the judgment of the Appellate Court into review in this court.

The case was submitted to the jury on the first, third, fourth, and sixth counts of the declaration, the other counts having been by direction of the court excluded from the consideration of the jury. The first and third counts charged that Peter Petersen became a passenger on one of the cars of the traction company on Broadway street, in the city of Aurora, and that he was received by the defendant company as such passenger; that said company failed and neglected to furnish the plaintiff's intestate a reasonably safe place to ride, but instead thereof deceased was allowed by the company to ride in an unsafe and dangerous place, which dangers were known to the company and unknown to deceased, by means whereof plaintiff's intestate was caught, crushed, and killed by another car passing in the opposite direction. The fourth and sixth counts charged that the deceased was a passenger, and that he was killed by reason of the defendant permitting the car upon which the deceased was riding to pass in close proximity to another car going in an opposite direction at a high rate of speed, whereby the deceased was rolled and crushed between the cars and killed.

The evidence shows that the accident occurred between 9 and 10 o'clock on the morning of September 7, 1903. On the day of the accident the deceased and a friend of his by the name of Nelson left Chicago to go to St. Charles to visit a mutual friend. The parties took the electric line to Aurora, and at the latter place they expected to take the electric line from Aurora to St. Charles. The regular schedule for the electric cars from Aurora to St. Charles was one car every hour, but on the day in question, owing to the heavy travel occasioned by Labor Day celebrations on different parts of the line of road, the company was running its cars one every half hour. Instead of running one car out, four or more cars were run on the same schedule in order to accommodate the large number of people who desired to travel on that day. The plaintiff in error operated a double track in the city of Aurora, one of which was used by outgoing and the other by incoming cars. The deceased and Nelson waited a short time in Aurora to get a car to St. Charles. They were at a cigar stand on the opposite side of the street from the outgoing track. The car which deceased and Nelson desired to take pulled up, and stopped to receive passengers almost opposite the cigar stand. There were also three or four other detached cars in the rear that stopped and were being rapidly loaded by passengers. The evidence shows that all the cars were loaded to their capacity during this forenoon. The car had four entrances-two at either end. The deceased and Nelson approached the car for the purpose of getting aboard, crossing over the incoming track to reach the steps of the car. The car was well filled with people when the deceased and Nelson arrived at the steps. Several persons, among them some ladies, were attempting to get aboard the car at the same point where the deceased and Nelson were. The evidence shows that these parties stood aside to give the ladies an opportunity to get aboard the car. After they were all in, the only room left was the lower step. The deceased and Nelson got upon the lower step and supported themselves by the handrails. At the point where the parties got aboard the car the distance between the inner rails of the two tracks, as testified to by Mr. Tarble, city engineer of Aurora, was five feet, but west of Fox river, and at the place where the accident occurred, the space between the tracks was six to eight inches less. After the car upon which the deceased was riding had proceeded west a short distance, and at a place where the convergence of the tracks had reduced the space between them, an incoming car of plaintiff in error's line caught Petersen and rolled and crushed him between the two cars, inflicting injuries from which he died soon after the accident. The engineer testifies that the bodies of the two cars would pass within nine inches of each other at the point where the accident occurred. The deceased had not paid his fare, nor had the conductor called on him for such payment at the time he was killed.

The errors relied on by plaintiff in error for a reversal of the judgment below are (1) the refusal of the court to direct a verdict, (2) error in the admission of evidence, and (3) the giving of certain instructions at the request of defendant in error.

Plaintiff in error contends in support of this first assignment of error that the deceased was guilty of contributory negligence in attempting to ride on the steps of the car. This was a proper question of fact to be submitted to the jury. This court has frequently had occasion to consider the question whether it is negligence, as a matter of law, to ride upon the steps or running board of a street car, and the rule laid down in the cases is that the question of contributory negligence should be submitted to the jury, to be determined under all the circumstances surrounding the case. In Chicago & Alton Railroad Co. v. Fisher, 141 Ill. 614, 31 N. E. 406, this court, on page 627 of 141 Ill., on page 410 of 31 N. E., said: ‘We know from common sense and ordinary observation and experience that under some circumstances it is culpable negligence to stand or sit on the platform or steps of a moving car, and that under other circumstances it is not; and, unless the case be one where the implication of negligence necessarily arises, it follows that what in a given set of circumstances would be negligence, and what would be an exercise of ordinary care, are conclusions of fact to be deduced from the circumstances of the particular case. It would seem that a jury of 12 men of ordinary judgment and experience is peculiarly well qualified to determine whether, under a state of circumstances detailed before them by witnesses, a particular line of conduct was ordinary care-in other words, such care as an ordinarily prudent and cautious man would exercise under like circumstances.’ Other later cases are to the same effect. North Chicago Street Railroad Co. v. Polkey, 203 Ill. 225, 67 N. E. 793;Alton Light & Traction Co. v. Oller, 217 Ill. 15, 75 N. E. 419,4 L. R. A. (N. S.) 399;Chicago Consolidated Traction Co. v. Schritter, 222 Ill. 364, 78 N. E. 820. In the case last above cited, on page 366 of 222 Ill., on page 821 of 78 N. E., it is said: ‘It was first contended by appellant that the verdict was not supported by the evidence. This contention is based chiefly on the fact that appellee was riding on the steps of the car at the time he was injured. It is not, and could not reasonably be, claimed that this constitutes negligence under all circumstances or...