Casey v. Chicago Rys. Co.

• Decision Date: 27 October 1915
• Docket Number: No. 10053.,10053.
• Citation: 109 N.E. 984,269 Ill. 386
• Parties: CASEY v. CHICAGO RYS. CO.
• Court: Illinois Supreme Court

269 Ill. 386

109 N.E. 984

CASEY

v.CHICAGO RYS. CO.

No. 10053.

Supreme Court of Illinois.

Oct. 27, 1915.

Error to Appellate Court, First District, on Appeal from Circuit Court, Cook County; John P. McGoorty, Judge.

Action by John D. Casey, administrator, against the Chicago Railways Company. Judgment for plaintiff was affirmed by the Appellate Court (190 Ill. App. 56), and defendant brings error. Reversed and remanded.

Farmer, C. J., dissenting.

J. R. Guilliams and Frank L. Kriete, both of Chicago (W. W. Gurley, of Chicago, of counsel), for plaintiff in error.

Cruice & Langille, of Chicago (Daniel L. Cruice, of Chicago, of counsel), for defendant in error.

COOKE, J.

Solomon Morris, a boy 8 years and 11 months of age, was found dead upon West Twelfth street, in the city of Chicago, on the night of October 10, 1911, supposedly having been killed by one of the street cars of the Chicago Railways Company. John D. Casey, administrator of the estate of Solomon Morris, secured a judgment for $2,500 against the Chicago Railways Company for the death of his intestate, in the circuit court of Cook county. This judgment was affirmed by the Appellate Court for the First District, and the record of that court has been brought here for review by writ of certiorari.

At the close of defendant in error's case, and again at the conclusion of the whole case, the court overruled the motion of plaintiff in error for a directed verdict, and this action of the court is assigned as error.

The declaration contained eight counts. The first, second, third, and sixth counts charged, generally, that the defendant carelessly and negligently drove and propelled its car so that it caused the death of Solomon Morris. The fourth count charged that the car was negligently operated at a high, rapid, and excessive rate of speed, causing the fatality. The fifth count charged the negligence to consist of the failure of the defendant to keep a proper lookout, and the seventh and eighth counts that defendant failed to comply with the provision of an ordinance of the city of Chicago, requiring street cars to be operated at night with brightly lit headlights from the front end of each car.

There were no eyewitnesses, and no witness testified either to what the motorman of the car in question or defendant in error's intestate did, or what either failed to do, prior to or at the time of the occurrence. The body of the deceased was found near the intersection of Lincoln and West Twelfth streets. West Twelfth street, in this section of the city, is an unusually wide street. On the north side of the street, south of the sidewalk, is a paved driveway. Along the south side of this pavement is the west-bound track of the Chicago Railways Company. Immediately south of the track is a parkway, in which are planted small trees and shrubbery. South of the parkway is a broad driveway or boulevard. South of the boulevard is another parkway, and south of that parkway is another paved driveway, on which is located the east-bound track of the Chicago Railways Company. The south rail of the west-bound track of the street railway is located about two or three feet north of the north edge of the parkway. Lincoln street is a north and south street intersecting West Twelfth street. The first street east of Lincoln street which intersects West Twelfth street is Wood street. There is a long block between Lincoln and Wood streets, and in the middle of this block there is a break in the two parkways sufficient to enable teams to drive from the boulevard onto the pavements wherein the street car tracks are located, but the evidence discloses that there is no sidewalk crossing at this break in the parkways for the use of pedestrians. The next street east of Wood street which intersects West Twelfth street is Paulina street. The first street south from West Twelfth street is Washburn avenue, which runs east and west. The deceased lived with his parents on Washburn avenue, near the corner of that avenue and Wood street. He left his home on the evening in question about 8 o'clock, in company with his sister. They went on Washburn avenue to Wood street, and from Wood street to the southeast corner of Wood and Twelfth streets, where the deceased stopped and entered into a game with some little boys of his acquaintance. His sister remained with them until about 8:30 o'clock, when she returned home. After she left, deceased went with one of the boys with whom he had been playing to the northeast corner of Paulina and Twelfth streets, where they remained for a few minutes. The boy who accompanied the deceased then went into a moving picture theatre located there, and that is the last time any one saw the deceased alive. His body was found near the intersection of Lincoln and Twelfth streets, about two blocks west of where he was last seen alive. From the condition of the south rail of the westbound track it was evident that the body had been dragged from a point near the break in the parkway, in the middle of the block between Lincoln and Wood streets, to a point beyond the intersection of Lincoln and Twelfth streets. The body was found about 11 o'clock that evening, and upon the matter being reported to the offices of the Railways Company an examination of the Twelfth street cars was made as they came into...