Chicago City Ry. Co. v. Hagenback

• Decision Date: 08 October 1907
• Citation: 81 N.E. 1014,228 Ill. 290
• Parties: CHICAGO CITY RY. CO. v. HAGENBACK.
• Court: Illinois Supreme Court

228 Ill. 290

81 N.E. 1014

CHICAGO CITY RY. CO.

v.HAGENBACK.

Supreme Court of Illinois.

June 19, 1907.

Rehearing Denied Oct. 8, 1907.

Appeal from Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; R. W. Clifford, Judge.

Action by Charles Hagenback against the Chicago City Railway Company. From a judgment of the Branch Appellate Court for the First District affirming a judgment for plaintiff, defendant appeals. Affirmed.

William J. Hynes, John E. Kehoe, and Watson J. Ferry (Mason B. Starring and W. E. Williams, of counsel), for appellant.

Goodrich, Vincent & Bradley (Warren Nichols, of counsel), for appellee.

CARTWRIGHT, J.

At about 8 o'clock in the evening of May 1, 1902, appellee, a teamster for Armour & Co., was driving a two-horse wagon, on which there were 15 empty barrels covered with a dirty, white tarpaulin, south on Halsted street, in the city of Chicago, along the west track of appellant, on which south-bound cars were run, when a street car overtook him just north of Thirtieth street, and, striking the wagon in the rear, pushed it along about 11 feet. Appellee was thrown from his seat down between the horses and under the wagon, and when the car was stopped he was found at the rear of the wagon, near the fender of the rear of with the thigh bone of his left leg broken. He brought this suit to recover damages for his injury, and his declaration contained one original count and seven additional counts. A demurrer was sustained to the fourth and sixth additional counts, and they were amended. The plea was the general issue, and the case was tried by a jury. The charges against the defendant contained in the declaration as it stood at the time of the trial were, first, carelessly and improperly propelling and managing the car; second, propelling the car at a high and dangerous rate of speed, to wit, 15 miles an hour; third, running it in the nighttime without a headlight; fourth, a repetition of the second charge in practically the same words; fifth, failing to warn plaintiff of the approach of the car, knowing that he was in front of it; sixth, propelling the car without knowledge of the presence of plaintiff in front of it, when in the exercise of due care his presence would have been known; seventh, failing to ring a bell or otherwise notify plaintiff of the approach of the car; eighth, employing incompetent and negligent servants to operate, control, and manage the car. The court directed the jury to find the defendant not guilty as to the charges that the car was run without a headlight and that the defendant employed incompetent or negligent servants, for want of any evidence tending to support such charges. The court refused to give like instructions as to the counts containing the other charges, and also, at the conclusion of the evidence, refused an instruction directing a verdict of not guilty.

The jury returned a verdict finding defendant guilty and assessing plaintiff's damages at $20,000. On motion for a new trial the plaintiff remitted $5,000 from the verdict, and the motion was overruled and judgment was entered for $15,000 and costs. The Branch Appellate Court for the First District affirmed the judgment.

It is contended that the court erred in not directing a verdict of not guilty, on the ground that the accident was occasioned by the negligence of the plaintiff, and not by the negligence of the servants of defendant managing the car. There was no evidence that the car was without a headlight, but, on the contrary, it was proved that it was equipped with an electric headlight, and was lighted on the inside with electric lights. Neither was there any evidence that the servants in charge of the car were incompetent, and it was proved that, as soon as the motorman discovered the plaintiff in front of the car, he used every possible appliance to stop it before colliding with the wagon, but that it was wholly impossible. The court directed the jury to find the defendant not guilty as to the charges relating to the headlight and incompetent servants. The evidence on the charges submitted to the jury was substantially as follows: Plaintiff had been a teamster for packing houses at the stockyards for more than 20 years, and had been in the habit of driving on Halsted street, and knew the manner in which the cars were operated. The northern terminus of defendant's Halsted street line was O'Neill street, some disstance north of Archer avenue, but, by reason of elevating tracks north of Archer avenue, that avenue was then the northern terminus of the Halsted street line. Plaintiff had driven the wagon with a load of 15 barrels of pork trimmings to 1300 North Halsted street. On his return south, he turned off Halsted street, where the tracks were being elevated, and drove one block west to Lime street. He drove south on Lime street, and turned east again into Halsted street at some street not identified, but which he said was about 2 1/2 blocks north from where the accident happened, which would be somewhere about Twenty-Seventh street. Archer avenue comes into Halsted street half a block north of Twenty-Fifth street. The car was probably standing at Archer avenue when the plaintiff turned into Halsted street, as that was the northern terminus of the line. He did not meet or pass any car going in the opposite direction, so that it must have been north of him. The evening was dark and foggy. There had been a misty rain and there was considerable mist and fog. West of Halsted street there were no buildings, and the country was open prairie, so there was no light from adjoining buildings, and the streets coming in from the east did not cross Halsted street, but stopped there. The street was practically deserted. There was no such number of people or vehicles as required slow running or any special slacking of speed.

It is argued that this evidence showed that the plaintiff could have seen the car when he turned into Halsted street, at least as far as Archer avenue, and could have seen the car at any time by looking back, and demonstrated that he exercised no care whatever for his own safety. He testified that, when he turned into Halsted street, he looked north, but could see no car, and that afterward he looked back now and then, once or twice in a block, and was unable to see any car. The argument is that his statement was so improbable as to be...