Chicago City Ry. Co. v. Saxby

• Decision Date: 22 December 1904
• Citation: 213 Ill. 274,72 N.E. 755
• Parties: CHICAGO CITY RY. CO. v. SAXBY.
• Court: Illinois Supreme Court

213 Ill. 274

72 N.E. 755

CHICAGO CITY RY. CO.

v.SAXBY.

Supreme Court of Illinois.

Dec. 22, 1904.

Appeal from Appellate Court, First District.

Action by Mary Saxby against the Chicago City Railway Company. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Affirmed.

This was an action on the case brought by the appellee in the circuit court of Cook county against the appellant to recover damages for an injury to her person claimed to have been sustained by her in consequence of the car of appellant, upon which she was a passenger, being suddenly started as she was about to leave the car, and before she had time to alight upon the street, whereby she was thrown down and injured. The jury returned a verdict in her favor for $16,000, and, upon her remitting $6,000 of that amount, the court overruled a motion for a new trial and entered judgment upon the verdict for $10,000, which judgment has been affirmed upon appeal by the Appellate Court for the First District, and a further, appeal has been prosecuted to this court. Two reasons are urged in this court as grounds for reversal: First, that the verdict is not justifled by the evidence; second, the court admitted improper evidence on behalf of the appellee.

Wm. J. Hynes and Watson J. Ferry (Mason B. Starring, of counsel), for appellant.

Brode B. Davis and Walker & Williams, for appellee.

HAND, J. (after stating the facts).

At the close of the plaintiff's evidence, and again at the close of all the evidence, the defendant requested the court to instruct the jury to return a verdict in its favor, which the court declined to do, and the action of the court in that regard has been assigned as error.

On the evening of August 16, 1899, appellee was a passenger upon one of appellant's cars going south upon Indiana avenue, in the city of Chicago. The evidence introduced on her behalf tended to show: That as the car approached Forty-Fifth street she signaled the conductor to stop the car at that street. That the car stopped at the intersection of Indiana avenue and Forty-Fifth street. That she started to leave the car, but, before she had time to alight upon the ground, and while she stood upon the running board upon the west side of the car, the car was suddenly started without warning to her, and she was violently thrown from the car upon the street, where she struck upon her left side and was injured. At the time of the accident the appellee was 60 years of age, and was in good health. From the time of the injury to the date of the trial, which occurred more than two years after the accident, she had left her room but once, and at the time of the trial was unable to sit up but a portion of the time or to walk. That the injury was to her left leg. That the neck of the femur bone of that leg was fractured, and tuberculosis had developed in the left knee, and the knee joint of that leg had become ankylosed.

The main contention of the appellant is that the diseased condition of the knee was caused by the leg being improperly treated by the physicians employed by the appellee, by placing thereon splints and plaster casts, and attaching to the foot pulleys and weights, and that tuberculosis, which, it is claimed, was organic with her, by reason of such imperfect treatment was developed in the knee; and it is urged that by reason of those facts the diseased condition of the knee was not the natural and ordinary consequence of the injury received by appellee at the time she fell upon the street, and that she ought not to be permitted to recover damages from the appellant for the conditions which were shown to exist in the knee. The appellee, immediately after the injury, was carried to her apartment, and was treated by Drs. Freund and Farnum, and Drs. Fenger and Andrews were called in consultation-Dr. Freund was called within a few minutes after the accident-all of whom were physicians practicing their profession in the city of Chicago. She was also cared for by a trained nurse during the first 18 months succeeding her injury, and at the time of the trial had in her employ a young woman who had devoted her entire time to her care since the trained nurse left her employ. Drs. Halstead and Findley, also physicians in practice in the city of Chicago, were called as experts, and approved the treatment applied to the appellee by her attending physicians.

It was the duty of the appellee to use reasonable care to effect a speedy and complete cure of the injury which she sustained by being thrown upon the street from appellant's car, and, to that end, she was required to exercise reasonable care to employ physicians of ordinary skill and experience to treat her, and other means to effect a cure of her injuries. She was not, however, required to employ the highest medical skill which might be found. All the law required was that she exercise such prudence as men and women of ordinary judgment, under like circumstances, would exercise in the choice of physicians and the means to be used to effect a recovery. She was not an insurer, bound to act at her peril; and if she exercised reasonable care in selecting her physicians,and in the employ of other means for her recovery, if her physicians made a mistake in the treatment applied by them to her, or the means employed failed to effect a cure, then she may recover for the entire injury which she has sustained, as the law, if the injured person uses ordinary care in selecting a physician, and in the employment of other means to effect a cure, regards an injury resulting from the mistake of a physician, or from a failure of the means employed to effect a cure, as a part of the immediate and direct damages which naturally flow from the injury.

In Pullman Palace Car Co. v. Bluhm, 109 Ill. 20, 50 Am. Rep. 601, which was a personal injury case, the court permitted the plaintiff to prove that the bones of his arm which were broken had not healed, but that the same had formed a false joint. On page 25, 109 Ill., 50 Am. Rep. 601, the court said: ‘If appellee exercised ordinary care to keep the parts together, and used ordinary care in the selection of surgeons and doctors, and nurses, if needed, and employed those of ordinary skill and care in their profession, and still, by some unskillful or negligent act of such nurses or doctors or surgeons, the parts became separated, and the false joint was the result, appellant, if responsible for the breaking of the arm, ought to answer for the injury in the false joint. The appellee, when injured, was bound by law to use ordinary care to render the injury no greater than necessary. It was therefore his duty to employ such surgeons and nurses as ordinary prudence in his situation required, and to use ordinary judgment and care in doing so, and to select only such as were of at least ordinary skill and care in their profession. But the law does not make him an insurer, in such case, that such surgeons or doctors or nurses will be guilty of no negligence, error in judgment, or want of care. The liability to mistakes in curing is incident to a broken arm, and where such mistakes occur (the injured party using ordinary care) the injury resulting from such...