Chicago City Ry. Co. v. Lewis

• Decision Date: 31 October 1879
• Parties: CHICAGO CITY RAILWAY COMPANYv.JOHN LEWIS, Adm'r.
• Court: United States Appellate Court of Illinois

5 Ill.App. 242

5 Bradw. 242

CHICAGO CITY RAILWAY COMPANY

v.JOHN LEWIS, Adm'r.

Appellate Court of Illinois, First District.

October Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. W. K. MCALLISTER, Judge, presiding. Opinion filed March 2, 1880.

This was an action on the case, brought by John Lewis, administrator of the estate of Martin English, deceased, against the Chicago City Railway Company to recover damages resulting from the death of English through the alleged negligence of the company in the running of its street cars.

The declaration alleges that on March 26, 1876, while the deceased, with all due care and diligence, was crossing State street, near its intersection with Archer avenue, one of the defendant's cars, through the negligence and improper management of defendant's servants, struck and ran over the deceased, causing him injuries of which he died April 1st, 1876. That deceased left him surviving Catharine English, his widow, and four children, all still living. That by the death of English said Catharine was deprived of her means of support, and the children of their means of support and education.

There was a jury trial resulting in a verdict for the plaintiff, with damages assessed at $3,000, for which amount the plaintiff had judgment. The company bring the case to this court by appeal, and assign various errors.

Messrs. HITCHCOCK, DUPEE & JUDAH, for appellant; as to negligence arising from intoxication of the plaintiff, cited Ill. Cent. R. R. Co. v. Cragin, 71 Ill. 177.

The plaintiff was bound to exercise care in attempting to cross the track: Ill. Cent. R. R. Co. v. Hetherington, 83 Ill. 510; C. B. & Q. R. R. Co. v. Damerell, 81 Ill. 450; C. & N. W. R. R. Co. v. Ryan, 70 Ill. 211; C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; T. P. & W. R. R. Co. v. Riley, 47 Ill. 514; C. & A. R. R. Co. v. Jacobs, 63 Ill. 178; C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; C. R. I. & P. R. R. Co. v. Bell, 70 Ill. 102; Ill. Cent R. R. Co. v. Godfrey, 71 Ill. 500; C. B. & Q. R. R. Co. v. Harwood, 80 Ill. 88; Ill. Cent. R. R. Co. v. Green, 81 Ill. 19; Kepperley v. Ramsden, 83 Ill. 354; L. S. & M. S. R. R. Co. v. Sunderland, 2 Bradwell, 310.

The burden is upon plaintiff to show he was in the exercise of due care: I. & St. L. R. R. Co. v. Evans, 86 Ill. 63; T. W. & W. R. R. Co. v. Grable, 88 Ill. 441.

Upon the rule of comparative negligence: City of Joliet v. Seward, 86 Ill. 402; C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; Ill. Cent. R. R. Co. v. Hammer, 85 Ill. 527; Ill. Cent. R. R. Co. v. Modglin, 85 Ill. 481; Ill. Cent. R. R. Co. v. Hetherington, 83 Ill. 510; Ill. Cent. R. R. Co. v. Hutchinson, 47 Ill. 410; C. & A. R. R. Co. v. Gretzur, 46 Ill. 75; C. & N. W. R. R. Co. v. Sweeny, 52 Ill. 325.

Instructions should state the law accurately, and when taken together should be consistent: C. B. & Q. R. R. Co. v. Payne, 49 Ill. 499; Camp Point Mfg. Co. v. Ballou, 71 Ill. 419; Quinn v. Donovan, 85 Ill. 194.

Messrs. STILES & LEWIS, for appellee; that negligence is a question for the jury, and their finding will not be disturbed unless it appears to have been influenced by passion or prejudice, cited C. B. & Q. R. R. Co. v. Lee, 87 Ill. 454; Stickle v. Otto, 86 Ill. 161.

Upon the right of the deceased to walk in the street: Ill. Cent. R. R. Co. v. Hutchinson, 47 Ill. 410.

The law does not require the same diligence of a drunken person as of a sober one: C. & A. R. R. Co. v. Becker, 76 Ill. 25.

Records of the United States Signal Service office are admissible as evidence: 1 Greenleaf Ev. § 496; Gault v. Galloway, 4 Pet. 342; Village of Evanston v. Gunn, U. S. Sup. Ct. Oct. T 1878; DeArmond v. Neasmith, 32 Mich. 231; Gurney v. House, 9 Gray, 404; Cliquot v. Champaign, 3 Wall. 114.

If the whole series of instructions is correct and fairly presents the law, an error in one of the series is no ground for reversal: No. Line Packet Co. v. Bininger, 70 Ill. 571; T. W. & W. Ry. Co. v. Ingraham, 77 Ill. 309; Stowell v. Beagle, 79 Ill. 525; Stickle v. Otto, 86 Ill. 161.

Upon the rule of negligence: Green v. Erie Ry. Co. 11 Hun. 333; Kenyon v. N. Y. C. & H. R. R. R. Co. 5 Hun. 479; Rudley v. London & N. W. Ry. Co. 1 App. Cas. 754; C. & N. W. R. R. Co. v. Donahue, 75 Ill. 106; Wharton on Negligence, § 388.

WILSON, J.

As the case will have to be submitted to another jury, we shall refrain from discussing the testimony in detail, and give only a summary of the facts as disclosed by the evidence. The accident which occasioned the injury complained of happened on the evening of March 26th, 1876, at about ten o'clock. English got upon one of the company's cars near the rolling mill bridge, about two miles from the place of the accident. He was considerably intoxicated, and conducted himself in a disorderly manner, using profane and insulting language, refusing to let the conductor collect fares, etc. The conductor endeavored to pacify him, but was unable to do so, and on arriving at State and Nineteenth streets, called an officer, and English was put off the car. The car passed on north, leaving English near the crossing, and a few feet west of the track. Mr. Dunn, a police officer, who was acquainted with him, tried to persuade him to go home, and before hearing of the accident sent another officer to go with him.

Some time after English was put off, a car going south on State street, and when about midway between Eighteenth and Nineteenth streets, ran over him, and he was fatally injured. How he came to be there does not appear. The night was dark and hazy, and the street at that point low and muddy. The driver and a Mr. Thomas were the only persons on the platform, neither of whom saw English until after he was struck. A moment before the accident, a person on the sidewalk shouted, when the driver, supposing a passenger wished to get on, at once applied the brakes and stopped the car. English was found under the rear platform, the car having passed entirely over him. The man who shouted, testifies that the car was going at an extraordinary speed--as he expressed it, a three-minute gait. Aside from the improbability of this statement, the testimony to the contrary is overwhelming, and shows that the car was moving at about its usual speed of four miles an hour.

Under this state of facts, it is manifest that the plaintiff failed to sustain the allegation of negligence on the part of the defendant. The burden was on the plaintiff to show not only that the deceased used due care and circumspection to avoid danger, but that the defendant was guilty of a want of care. In what particular the defendant is shown to have failed in the performance of its duty to observe care we are unable to perceive. The car was being driven at its usual rate of speed, the night was dark, and the weather inclement, making it difficult, if not impossible to see an object at any considerable distance on the track directly ahead; it was not at a street crossing, but midway between two streets, at a point where the street was low and muddy. The adjacent sidewalk on the west side of the street was three feet high, and that on the east side one foot, and the place of the accident was one where the driver would have no reason to suppose a footman would be found at that hour of the night. The moment he heard the alarm the driver applied the brakes and stopped the car, but too late to prevent the casualty. Under these circumstances, we see no grounds upon which negligence can be imputed to the railroad company.

It is claimed by appellee's counsel, that the bare fact that a man walking in the public streets of a city, is run over and killed by a horse car, imports gross negligence on the part of a railroad company in the management of its cars. The inference would be just as legitimate that the injured party was chargeable with gross negligence. It depends upon the circumstances of the case, and cannot be affirmed to be a rule of universal application. If it were in the daytime, or in a light night, or at a street crossing frequented by the public, there might be some ground for the assumption. But to assert that an accident occurring in a dark night and under the circumstances disclosed by the evidence in the present case, imports gross negligence, is an assumption not supported by reason or authority. The rule that proof of an accident and resulting injury is presumptive evidence of negligence only obtains where the circumstances attending the accident do not themselves rebut the presumption of negligence.

But if it were necessary...