Barnes v. Danville St. Ry. & Light Co.

• Decision Date: 26 October 1908
• Court: Illinois Supreme Court
• Parties: BARNES v. DANVILLE ST. RY. & LIGHT CO.

235 Ill. 566

85 N.E. 921

BARNES

v.DANVILLE ST. RY. & LIGHT CO.

Supreme Court of Illinois.

Oct. 26, 1908.

Appeal from Appellate Court, Third District, on Appeal from Circuit Court, Vermilion County; M. W. Thompson, Judge.

Action by John S. Barnes against the Danville Street Railway & Light Company. Judgment for plaintiff affirmed by the Appellate Court, and defendant appeals. Reversed and remanded.

H. M. Steely and Louis Clements, for appellant.

Curtis G. Redden and S. M. Clark, for appellee.

CARTWRIGHT, C. J.

On October 3, 1906, the appellee became a passenger on a street car of appellant on Vermilion street, in Danville, at the public square, and rode north about half a mile to where a double-track railroad crossed the street railway at right angles. The street car stopped about 30 feet south of the south railroad track, and all of the passengers got off except 10 or 12. The conductor went ahead upon the railroad crossing to see if the way was clear, and, finding it clear, he signaled the motorman to come on. The motorman started the street car across the railroad tracks, but the power suddenly went off the trolley wire, and the street car stopped, standing over the tracks. The north track was used for west-bound trains and the south track for east-bound trains. There was a locomotive engine on the north track, a short distance east of the street car, which was either standing or moving slowly toward it, waiting for the signal that would permit it to cross the street car track. The signal consisted of a horizontal arm, which would be dropped down to give the engine the right of way; and there was another engine near by on the other track, either standing still or moving slowly. When the street car stopped on the tracks. This was done in great haste, and he jumped off the car on the west side, calling for help to assist him in shoving the street car off the railroad tracks. The conductor, who was on the east side of the street car, between the two tracks, called to the passengers to get off the car, and they all got off except the appellee, who was sitting in the front seat, facing north on the west side, reading a newspaper, and a lady who was in the rear seat on the east side. The car was an open summer car, and all that was done was plainly visible to everybody. The appellee was somewhat hard of hearing, and did not hear the motorman, but did hear the conductor, and he saw the motorman jump off hurriedly and saw what was being done. The conductor, motorman, and passengers who got off took hold of the street car and shoved it back to the south, off the railroad track. The signal was then given for the locomotive to cross the track, and it started up. The appellee sat in the car until this time, when he got up, and was folding his newspaper, with the intention, as he says of getting off the car, and stepped to the other side of the car, when the power suddenly came on again, and the street car started forward and ran in front of the approaching locomotive. When the car started, the motorman jumped for the car to get on and get to his levers, and was climbing up on the west side of the car when it was struck by the locomotive and turned partly around, throwing the motorman against the curbstone on the west side of the street and throwing appellee out on the east side of the car. The appellee suffered a scalp wound, which soon healed, and a fracture of the left shoulder blade, which united in a short time. He was disabled for about 10 weeks, when he resumed his occupation. He brought this suit in the circuit court of Vermilion county to recover damages for his injuries. The negligence charged in the declaration as a ground of liability was that the motorman negligently failed to disconnect the street car from the power, and negligently permitted the car to stand on the street car track, near the railroad track and crossing, without being disconnected from the power. The plea was the general issue, and upon a trial there was a verdict finding the appellant guilty and assessing the damages at $3,000. The court overruled a motion for a new trial, and entered judgment on the verdict, from which the appellant appealed to the Appellate Court for the Third District. The Appellate Court affirmed the judgment, and this further appeal was prosecuted.

There was no material conflict in the evidence, by which the facts above recited were proved, and it is argued that the court erred in refusing to direct a verdict of not guilty, for the reason that the evidence did not fairly tend to prove that the plaintiff was in the exercise of due care to avoid the injury, nor that the defendant was guilty of any breach of duty toward him. Counsel call attention to the testimony of the plaintiff that he saw the car stopped on the tracks and noticed the locomotive engine a short distance east, either standing or approaching slowly, and also some cars on the south track to the east and another engine on the west side; that he saw the motorman jump off in a hurry and heard the conductor call for the passengers to get off and saw them get off, and did not get off, but remained on the car while the conductor, motorman, and other passengers assisted in getting the car off the tracks. It is true that the plaintiff was not bound to assist in moving the car; but that fact has no bearing on the question whether he neglected that care which was reasonably to be expected from an ordinarily prudent person in the same condition by remaining upon the car in entire unconcern in the situation and under all the circumstances. As it turned out, if he had remained in the seat until the collision, he would not have been injured. All the evidence was to be considered by the jury; but, under the evidence, the question whether the plaintiff was in the exercise of ordinary care for his own safety was a question of fact. On the question of alleged negligence of the defendant, the evidence tended to prove that an emergency existed and the motorman was under considerable excitement when the car stopped in a place of danger, that it appeared to be necessary for him to act with great promptness, and that he made an immediate effort to shut off the power and get the car off the tracks, and also that the conductor called to the passengers to get off the car. It is true that, in determining whether the defendant was in the exercise of the highest degree of care for the safety of its passengers, the law would not exact the same measure of prudent judgment from its employés when compelled to act in a sudden emergency as it would in a case where there was time for deliberation. Persons who have to act in a sudden emergency are not to be judged in the light of after events, but are to be judged, under all the circumstances of the case, by the standard of what a prudent person would have been likely to do under the same circumstances. Whether the failure of the motorman to turn the...