Chicago City Ry. Co. v. O'Donnell

• Decision Date: 17 February 1904
• Citation: 208 Ill. 267,70 N.E. 294
• Parties: CHICAGO CITY RY. CO. v. O'DONNELL.
• Court: Illinois Supreme Court

208 Ill. 267

70 N.E. 294

CHICAGO CITY RY. CO.

v.O'DONNELL.

Supreme Court of Illinois.

Feb. 17, 1904.

Appeal from Appellate Court, First District.

Action by Patrick H. O'Donnell, as administrator of the estate of John White, deceased, against the Chicago City Railway Company. From a judgment of the Appellate Court (108 Ill. App. 385) affirming a judgment in favor of plaintiff, defendant appeals. Reversed.William J. Hynes, James W. Duncan (Mason B. Starring, of counsel), for appellant.

James C. McShane, for appellee.

This is an appeal from a judgment of the Appellate Court affirming a judgment for $2,500 entered upon a verdict rendered by a jury in the superior court of Cook county against appellant in an action on the case prosecuted to recover damages on account of the death of John White. The declaration consisted of one count, and alleged tat the defendant, through its certain servant then and there in charge of one of its street cars then and there being operated upon and along said railway upon Halsted street in a northerly direction towards and past Forty-Second street, so recklessly, carelessly, and negligently ran and drove the said street car at such a high and dangerous rate of speed, and without maintaining a proper lookout, and without giving suitable warning of the approach of said car, that as a result and consequence thereof said car then and there ran against and struck said wagon, etc. A plea of not guilty was filed.

The evidence discloses that at the time of the accident deceased was 74 years of age and in the employ of a lumber company as a sort of errand man, and on the day of the accident was driving a one-horse carpenter wagon belonging to his employer. He had dilivered some lumber, and was driving back towards the lumber company's office, south on Halsted street, and immediately before the accident was following a covered beer wagon. Halsted street runs north and south. Appellant had two street car tracks along Halsted street, the west line being called the ‘south-bound track’ and the east line the ‘north-bound track.’ The beer wagon which deceased was following was going down the south-bound track very slowly, and about the time Forty-Second street was reached the deceased pulled his horse out onto the north-bound track, and either started to go around the wagon he was following or to turn east on Forty-Second street, there being a conflict in the evidence as to what he was trying to do, but the evidence shows that about the time he had pulled over onto the north-bound track he pulled back towards the south-bound track, and his wagon was struck by an electric car coming towards him on the north-bound track. White fell from his wagon, and died a short time afterwards. Forty-Second street interests Halsted street on the east side, but does not extend west beyond Halsted street, the stockyards being to the west.

The errors urged are the failure of the court to direct a verdict for the appellant, the giving and refusing of instructions, limiting the number of instructions to be given and passed upon by the court, and alleged miscounduct of the attorney for appellee in his agrument to they jury.

RICKS, J. (after stating the facts).

1. It is urged that the court should have directed a verdict for appellant because White, plaintiff's intestate, was guilty of contributory negligence as a matter of law. If is contended that there is no evidence that the deceased used ordinary care for his own safety, and that the evidence, taken in themost favorable light to appellee, does not tend to show that the deceased did use ordinary care, but, on the contrary, shows that the deceased's injury resulted from his own negligence. Appellant concedes that it is generally a question of fact whether or not a given line of conduct amounts to the exercise of ordinary care, but takes the position that it is equally well settled that, where there is no conflict in the evidence, and where it can be fairly seen the injury was the result of the negligence of the party injured, the question becomes one of law, and in such case the court should instruct the jury to find for the defendant. In this position appellant insists it is supported by Beidler v. Branshaw, 200 Ill. 425, 65 N. E. 1086,North Chicago Street Railroad Co. v. Cossar, 203 Ill. 608, 68 N. E. 88, and in other cases cited in its brief.

The accident occurred in the morning. The sun was shining, but there was some mist. Appellee's contention is that when the deceased reached the north boundary of Forty-Second street he turned his horse in an easterly course, as if to cross Halsted street and go east along Forty-Second street, but that there was on the east line of Halsted street another beer wagon loaded with barrel beer that obstructed his way, and, seeing the approaching car of appellant coming from the south, and north bound, the deceased, in order to avoid a collision, turned his horse back towards the west to pass the car on the west side, but that the west track, which was only about five feet from the east track, was occupied, and the speed of the car was so great that before he could reach a place of safety the collision took place. Appellant's contention is that the deceased undertook to pass the wagon loaded with bottled beer, which he had followed on the south-bound track, that was immediately in front of him, and pulled out of Forty-Second street for that purpose; that the street, except as to the wagon going south along the west track, was free from obstructions; and that the deceased, in the exercise of ordinary care, should have seen the approaching car, and have refrained from turningout on to or near to the east track until the car had passed.

There is some conflict in the evidence as to where the deceased did leave the west track-whether at the north boundary or north curb of Forty-Second street or about the middle of Forty-Second street. Witnesses for appellee testified that the deceased left the track at the north boundary, or at the curb of Forty-Second street, and that the collision took place about the middle of the street, while other witnesses testified that the deceased left the west track about the middle of the street, and that the collision took place near the south curb. There is no conflict in the evidence but that the car, when the deceased did pull into the street, was between 100 and 200 feet south of him. There is a conflict in the evidence as to the speed of the car, but there is testimony tending to show that the speed of the car was about 12 miles an hour when the collision took place. In considering this question we are bound to take the testimony most favorable to appellee. The evidence most favorable to him tends to show that the deceased turned out of the west track at the north boundary of Forty-Second street, and that at that time the car was 200 feet away, and was traveling at the rate of 12 miles an hour, and that its speed was not perceptibly slackened until almost the moment of the collision. There is also evidence tending to show that the bell was not rung of gong sounded, and while there is evidence that shows that the motorman, and perhaps others, by calling to and by gesticulation sought to warn the deceased, there is no evidence that he was conscious of such warning. The evidence as to what course the deceased intended to pursue at the time he did pull out of the west track is only inferential, there being no evidence showing where he was going, or what for. His place of work was at 4824 Halsted street, or a little more than six blocks directly south of where he received his injuries, and at that time he was going south towards his headquarters, with his wagon empty.

We have for several years denied the contention that the failure to look and listen when approching a railroad crossing was, as a matter of law, negligence, and have in recent years uniformly held that whether such failure was negligence was a question of fact, to be determined from all the facts and circumstances in the case. If, then, it was not negligence, as a matter of law, for the deceased to have changed his course at the street crossing and have turned out toward or upon the east track without looking and listening for a north-bound car, we are unable to say that, as a matter of law, the deceased was guilty of negligence in doing so when it appears that the car was 200 feet away from him, approaching a street crossing, and in the absence of evidence that he had any knowledge that such car was approaching. Appellant puts the question thus: ‘The sole question then arises, was his conduct in turning to the left upon the track, where he might come face to face with an approaching car, contributory negligence?’ and we answer, ‘As a matter of law, no; as a matter of fact, it may have been.’ But to say that in a city, at the crossings of streets, every person in a conveyance who may veer from his course is guilty of negligence or want of ordinary care because he may come face to face with an approaching car and may incur an injury, is to say that, as a matter of law, every person driving along a street must take one course, and not deviate from it, at the risk of receiving injury for which he shall have no compensation under any circumstances. The been wagon that was in front of the deceased when driving down the west track continued in its course, and when the injury occurred the two wagons were practically side by side, and whether it was the duty of the deceased, in the exercise of ordinary care, to have seen the approaching car 200 feet away at or before the time he pulled out of the west track, and have apprehended the danger of a collision, and have remained on the west track, or to have endeavored to have gone on east, down Fcrty-Second street, or turned back into the west track behind the wagon he had been following, or whether he might not, in the exercise of ordinary care, rely upon appellant so keeping its car...