Chicago City Ry. Co. v. Carroll

• Decision Date: 16 December 1903
• Citation: 206 Ill. 318,68 N.E. 1087
• Parties: CHICAGO CITY RY. CO. v. CARROLL.
• Court: Illinois Supreme Court

206 Ill. 318

68 N.E. 1087

CHICAGO CITY RY. CO.

v.CARROLL.

Supreme Court of Illinois.

Dec. 16, 1903.

Appeal from Appellate Court, First District.

Action by Robert Carroll against the Chicago City Railway Company. From a judgment in favor of plaintiff, affirmed by the Appellate Court (102 Ill. App. 202), defendant appeals. Affirmed.Wm. J. Hynes and Samuel S. Page (Mason B. Starring, of counsel), for appellant.

Steere & Furber, for appellee.

This is an appeal from the Appellate Court for the First District from a judgment obtained by Robert Carroll against the Chicago City Railway Company. The original judgment in the superior court was for the sum of $5,000. The Appellate Court required a remittitur of $2,000, and judgment was entered for the sum of $3,000. The declaration consisted of six counts. Each of said counts alleged that defendant was possessed of, owning, and operating a street railway, and electric street cars thereon, the electricity for which was supplied from the wire overhead through and upon an iron trolley pole attached to the top of the car. Each count contained averments of due care and caution. The first count alleges, also, that plaintiff was at or near the intersection of Wentworth avenue and Thirty-Fifth street, and, without alleging any duty, avers that the defendant, by its servants, so carelessly and negligently propelled and managed its car and trolley pole that the pole broke away from said car, fell, and hit plaintiff upon the head. The second count avers defendant also owned and operated tracks and trolley wires on Thirty-Fifth street, and that it was defendant's duty, when crossing said street, to manage and control the trolley pole on the Wentworth avenue car by a rope attached thereto, so that it should not be caught in the intersecting wires; that while the plaintiff was walking along Wentworth avenue, at or near the intersection of Thirty-Fifth street, defendant, by its servants, so carelessly and negligently managed and operated said car and trolley pole that the upper end thereof was not held in control, and became caught and entangled in said wires, and was thereby torn off the roof of said car, fell, etc. The third count alleges that the trolley pole was connected to the car by a turntable attached or screwed to the car by a bolt, and that it was defendant's duty to provide strong and sufficient bolts; that the pole and turntable were attached by an insufficient and defective bolt; that while plaintiff was walking along Wentworth avenue, at or near its intersection with Thirty-Fifth street, said pole fell by reason of said defective bolt. The fourth count alleges that it was defendant's duty to regularly inspect the pole and turntable, and see that the bolts and screws were in good order and repair; that defendant permitted said bolts and screws by which the turntable and pole were attached to the car to become worn out, rusty, and out of repair; and that while plaintiff was walking along Wentworth avenue, at or near the intersection of Thirty-Fifth street, the trolley-pole fell by reason of the defective bolt, as aforesaid. The fifth count charges that defendant operated both the Thirty-Fifth street and Wentworth avenue lines, and that passengers were entitled, for one fare, to a continuous ride on both streets, and were given transfer slips entitling them to change cars at Thirty-Fifth street; that plaintiff was a passenger upon a Wentworth avenue car, paid his fare, and received a transfer slip; that he left the Wentworth avenue car at or near the intersection with Thirty-Fifth street to continue his journey upon a Thirty-Fifth street car, and, while he was walking to said car, defendant so carelessly and negligently managed and operated the Wentworth avenue car, and trolley pole attached thereto, that said trolley pole fell, etc. The sixth count differs from the fifth count in the negligence averred, which is that defendant, by its servants, carelessly and negligently permitted plaintiff to be hit upon the head by said trolley pole. The general issue, only, was filed. The only error relied upon is that the Appellate Court erred in affirming the judgment of the superior court, and in not reversing the same; and, based upon this assignment, appellant argues and insists upon error in the court's refusal to direct a verdict for appellant, and in failing to direct the jury that appellee could not recover under the various counts of the declaration, the giving and refusal of instructions, the admission and rejection of evidence, and alleged improper remarks by the court.

RICKS, J. (after stating the facts).

At the close of all the evidence appellant made a motion and offered an instruction to have a verdict directed for it. The court denied the motion and refused the instruction, and for that, error is assigned. If there was evidence in the record fairly tending to support the averments of the declaration, or any count of it, that instruction was properly refused.

As to the manner in which and the circumstances under which appellee received his injuries, no evidence was offered except by appellee. Appellant has no evidence in the record, and examined no witness on any branch of the case, except as to the measure of damages, so that whatever evidence there is in the record tending to establish appellee's case is uncontradicted and undisputed. The undisputed evidence shows that appellee, on the 28th day of January, 1899, between 10 and 11 o'clock a. m., entered one of appellant's electric cars, which was operated by a trolley, at Sixty-Third street and Wentworth avenue, to make a journey over its line thence to Thirty-Fifth street, where appellant had a line running east and west along the latter street, which appellee was to take to carry him west to Parnell avenue, where he resided; that appellee paid his fare, and received a transfer for the Thirty-Fifth street line; that when Thirty-Fifth street was reached, and as appellee was alighting from, or just as he had alighted from, the Wentworth avenue car to go to the Thirty-Fifth street car, at the junction of these two streets, the trolley pole from the Wentworth avenue car, from which appellee had just alighted or was alighting, fell from that car and struck appellee upon the head and knocked him down, and whatever injuries he did suffer resulted therefrom. Appellee was picked up in a dazed condition, and carried to a store near the car line, and taken thence home in an ambulance.

Appellee testified that he had a transfer, and his son testified that when he was brought home a transfer was taken out of his pocket. No witness denied that he had a transfer, or that he received it in the regular way. It is now urged that because a transfer paper itself was not offered in evidence, and is not in the record, that is fatal to appellee's case. We do not think so. The action was not upon the transfer paper. It was a mere incident to appellee's right. It was sufficient that the undisputed evidence showed, or tended to show, that appellee did receive a transfer, and in consequence of that, and by virtue of it, was a passenger on both lines of appellant while making a continuous journey to his destination. North Chicago Street Railroad Co. v. Kaspers, 186 Ill. 246, 57 N. E. 849.

It is further said by appellant that there is nothing to show what caused the trolley pole to fall, or to show that the car was run in a negligent manner with regard to speed, or defectively or wrongly constructed. It was not necessary for appellee to show these matters. As early as 1854, in the case of Galena & Chicago Union Railroad Co. v. Yarwood, 15 Ill. 468, this rule was announced (page 471): ‘By the law they [railroads] are bound to the utmost diligence and care, and are liable for slight negligence. Proof that defendant [appellee] was a passenger, the accident, and the injury, make a prima facie case of negligence. This is done, and the burden of explaining is thrown upon the plaintiffs [appellants].’ The rule above quoted has, from the time of its announcement to the present time, been adhered to by an unbroken line of decisions in this state. It is the general, recognized rule of this country, and is one application of the rule res ipsa loquitur. 3 Thompson on Negligence, § 2754; 2 Wharton on Negligence, § 661; Galena & Chicago Union Railroad Co. v. Yarwood, 17 Ill. 509, 65 Am. Dec. 682; Pittsburg, Cincinnati & St. Louis Railway Co. v. Thompson, 56 Ill. 138;Peoria, Pekin & Jacksonville Railroad Co. v. Reynolds, 88 Ill. 418;Eagle Packet Co. v. Defries, 94 Ill. 598, 34 Am. Rep. 245;North Chicago Street Railway Co. v. Cotton, 140 Ill. 486, 29 N. E. 899. The rule as announced by Mr. Thompson in his work on Negligence, supra, is: ‘The general rule may be said to be that where an injury happens to the passenger in consequence of the breaking or failure of the vehicle, roadway, or other appliance owned or controlled by the carrier, and used by him in making the transit, or in consequence of the act, omission, or mistake of his servants, the person entitled to sue for the injury makes out a prima facie case for damages against the carrier by proving the contract of carriage; that the accident happened in consequence of such breaking or failure, or such act, omission, or mistake of his servants; and that in consequence of the accident the plaintiff sustained damage.’ In North Chicago Street Railway Co. v. Cotton, supra, this court said (page 494, 140 Ill., page 901, 29 N. E.): ‘The general rule seems to be that proof of an injury occurring as the proximate result of an act which under ordinary circumstances would not, if done with due care, have injured any one, is enough to make out a presumption of negligence. And this is held to be the rule even where no special relation, like that of passenger and carrier, exists between the parties.’ In that case the further language is used (page 493, 140 Ill., page 901, 29 N. E.): ‘The evidence of...