Chicago City Ry. Co. v. Jordan

• Decision Date: 17 April 1905
• Citation: 74 N.E. 452,215 Ill. 390
• Parties: CHICAGO CITY RY. CO. v. JORDAN.
• Court: Illinois Supreme Court

215 Ill. 390

74 N.E. 452

CHICAGO CITY RY. CO.

v.JORDAN. ^*

Supreme Court of Illinois.

April 17, 1905.

Appeal from Appellate Court, First District.

Action by Alfred E. Jordan, as administrator of the estate of Arthur A. Jordan, deceased, against the Chicago City Railway Company. From a judgment for plaintiff, affirmed by the Appellate Court, defendant appeals. Reversed.

Wm. J. Hynes, James W. Duncan, and C. Le Roy Brown (Mason B. Starring, of counsel), for appellant.

Edgar L. Masters and Ira J. Geer (Darrow, Masters & Wilson, of counsel), for appellee.

CARTWRIGHT, J.

This is an action on the case, brought in the superior court of Cook county by appellee, as administrator, against appellant, for the death of his five year old son, Arthur A. Jordan. There was a judgment for $2,500, which has been affirmed by the Appellate Court for the First District.

At the close of the evidence, defendant asked the court to direct a verdict in its favor, and the court denied the motion.

The accident occurred at the crossing of Garfield Boulevard and Halsted street at 1:20 p. m. on a clear day. The declaration finally contained 10 counts, in one of which the defendant was charged with negligence generally in driving and managing the car which inflicted the injury, and in others it was charged that there was negligence in failing to ring any bell or sound a gong as the car approached the place, that there was a negligent failure to keep a proper lookout, and that there was negligence in the rate of speed at which the car was run. There was a count which charged negligence in causing two cars to pass each other so near to the cross-walk as to be dangerous to pedestrians, and that the deceased was seen by the servants in charge of the car in a position of deadly peril, and they recklessly, willfully, and wantonly drove the car to and upon him. There was no evidence tending to sustain the charge of willful or wanton injury. The evidence, and the only evidence, was that the motorman did not and could not see the boy until the instant that the boy ran against the step of the car at the side, and that he then did everything he could to stop the car. There were two other counts which the evidence did not tend to prove, one of which charged that the brakes were in a defective condition, and the other that the servants in charge of the car were incompetent; and the court instructed the jury that there was no evidence to sustain either of those counts. There was evidence, however, tending to prove the charges of negligence in failing to ring a bell or give a signal as the car reached the crossing, and as to the rate of speed.

The following facts were not in dispute: On March 11, 1902, the plaintiff, Alfred E. Jordan, sent his son, the deceased, Arthur A. Jordan, a little boy five years old, on an errand on Garfield Boulevard, in the city of Chicago, requiring him to cross Halsted street. Garfield Boulevard runs east and west, and Halsted street north and south; and there were double tracks of the defendant on Halsted street, upon which cars propelled by electricity were run. The crossing was one used by a great many people. The entire width of Garfield Boulevard is about 200 feet. There are three driveways-one on the north, another on the south, and a center driveway running east from Halsted street-with grass plats between. In going upon the errand along Garfield Boulevard, Arthur fell in with another little boy, Charlie McArthur; and they went across Halsted street, and were returning east, holding each other by the hand. The defendant's cars were required to stop before crossing the boulevard, and there was a south-bound car on the west track on Halsted street, which stopped at the north crossing. The children came up and stood on the crossing, waiting for the car to move on. As the car started up, they went around the rear of it; and Arthur, who was a little ahead of his companion, collided with a north-bound car that had just passed the other car. They could not see the north-bound car until they came around the rear of the other car, and could not be seen from it. Arthur came in contact with it at the side, against the front step on the west, and was knocked down and caught by the axle, and died from the injuries.

Whether there was any bell rung or gong sounded on the north-bound car was disputed, and the evidence was conflicting as to the rate of speed. There was evidence that the gong was sounded as the cars passed each other near the center of the north driveway; but witnesses for the plaintiff testified that there was no bell rung on approaching the crossing, while others testified for the defendant that there was. The northbound car had stopped at the south side of the boulevard, and was preparing to stop again at the north side of the walk for a woman who was waiting there. As to the speed, most of the witnesses estimated the rate at two to four miles an hour, but one thought it was six or seven miles an hour, and another ten. The car was a vestibuled one, about 30 feet long, and witnesses differed as to where it stopped after the accident-whether on the crossing or north of it. Some of them said the whole car was three or four feet north of the crossing, and others that the front of the car was eight to ten feet north of the crossing, and others that it was only three to five feet north of that point. This conflicting evidence required a submission of the case to the jury, and there was no error in refusing to direct a verdict.

Although there was no evidence tending to prove a willful or wanton injury, that question was submitted to the jury both by instructions and a special interrogatory. It was undisputed, and in fact a part of the plaintiff's case, that the boy could not see the car until he came around the rear of the south-bound car, and under such circumstances it was necessary that proper signal or warning should be given. The motorman could not see the boy until he was practically at the car. He collided with it at the side next the vestibule, where the motorman stood, and nothing the motorman could have done then would have averted the accident. Whoever was right in estimating the speed of the car, it had stopped at the south side of the boulevard, and was preparing to stop again to take up a passenger, and it was impossible that there could have been such a reckless rate of speed as to justify a presumption of a disregard of consequences or a willingness to inflict...