Chicago City Ry. Co. v. Cooney

• Decision Date: 16 April 1902
• Citation: 196 Ill. 466,63 N.E. 1029
• Parties: CHICAGO CITY RY. CO. v. COONEY.
• Court: Illinois Supreme Court

196 Ill. 466

63 N.E. 1029

CHICAGO CITY RY. CO.

v.COONEY.¹

Supreme Court of Illinois.

April 16, 1902.

Appeal from appellate court, First district.

Action by Ellen Cooney against the Chicago City Railway Company. From a judgment of the appellate court (95 Ill. App. 471) affirming a judgment for plaintiff, defendant appeals. Affirmed.William J. Hynes, Samuel S. Page, and Watson J. Ferry (Mason B. Starring, of counsel), for appellant.

Rosenthal, Kurz & Hirschl, for appellee.

This is a suit brought by appellee against appellant to recover for injuries sustained by her in a collision between a wagon and one of appellant's street cars on which she was a passenger. A large wagon, loaded with heavy iron pipes, some of which projected as much as eight feet from the rear end of the wagon, was backed out of a building on the west side of Clark street across the tracks of appellant's road, and the ends of the pipes came into collision with appellant's train, consisting of a motor car and a trailer. Appellee was sitting in the forward car, and, when she saw that a collision was imminent, attempted to get off the car, and in so doing fell and was injured. The suit was originally begun against the appellant company and Downey, the driver, and Burke, the owner, of the wagon. After Downey had testified as a witness for appellee, the suit was dismissed as to him. Burke was adjudged not guilty, but a verdict was found and judgment rendered against appellant for $2,500. From the judgment of affirmance rendered by the appellate court for the First district this appeal was taken.

Appellee's declaration contained but one count originally, on which appellant joined issue. This count contained no allegation of due care on the part of plaintiff. After the trial began, and certain witnesses had been heard, appellee, by leave of court, filed an amended declaration, which was substantially the same as the original, with the additional allegation that she was in the exercise of ordinary care for her own safety. It was in the main as follows: ‘That said servants of said company so improperly and carelessly drove, pushed, and managed said electric car in which plaintiff was seated, and Downey so improperly and carelessly drove, pushed, and managed said truck, that through the negligence and improper conduct of said servants, respectively, the said truck and electric car collided with great force and violence, by reason of which premises plaintiff was violently thrown to the ground there, and sustained serious and permanent physical injuries, internally and externally, was caused great pain, suffering, and impairment of bodily health, strength, and ability to labor, and will, the rest of her life, sustain such pain, suffering, and impairment; and that at, throughout, and prior to said occurrence she herself was in the exercise of ordinary care for her own safety.’ In addition to the general issue, the defendant pleaded the statute of limitations to the amended count, to which plea a demurrer was sustained and the defendant elected to stand by its plea. Motions for a new trial and in arrest of judgment were overruled.

One of the instructions given for appellee was the following: ‘(8) While it was the duty of plaintiff to employ such medical attention as ordinary prudence in her 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, yet, if she exercised such judgment and care, then, and in case (as provided in the other instructions) you find her entitled to recover, you may take into consideration all injuries and impairments, if any, which directly resulted from the occurrence in question, even though they resulted, in whole or in part, through mistakes of some one or of any of her medical attendants. This liability that a medical attendant (provided ordinary care was used in his selection) may make mistakes or errors is by you (but as limited by above provisions) to be considered as part of the immediate and direct damages resulting from the occurrence in question.’

CARTER, J. (after stating the facts).

Appellant's first assignment of error is that the trial court erred in sustaining the plaintiff's demurrer to its plea of the statute of limitations. It is contended that the original declaration was defective, because it lacked the allegation that the plaintiff was exercising due care for her own safety, and for that reason stated no cause of action; and that the cause of action stated in the amended declaration was barred by the statute, it having been filed more than two years after the cause of action accrued. That the original declaration stated a cause of action, though defectively, clearly appears, for the reason that it would have been sufficient, after verdict, on motion in arrest of judgment or on error. Railroad Co. v. Simmons, 38 Ill. 242;Cox v. Brackett, 41 Ill. 222;Gerke v. Fancher, 158 Ill. 375, 41 N. E. 982. See, also, Coal Co. v. Scheiber, 167 Ill. 539, 47 N. E. 1052. The cause of action stated in the amended declaration was identical with the one stated in the original declaration, and the amendment amounted only to a restatement of the cause of action, and not to a statement of a new cause of action. The demurrer to the plea of the statute was therefore properly sustained.

Appellee insists that it was too late to raise the question by the plea of the statute of...