Chicago City Ry. Co. v. McClain

• Decision Date: 24 October 1904
• Citation: 71 N.E. 1103,211 Ill. 589
• Parties: CHICAGO CITY RY. CO. v. McCLAIN.
• Court: Illinois Supreme Court

211 Ill. 589

71 N.E. 1103

CHICAGO CITY RY. CO.

v.McCLAIN.

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Appellate Court, First District.

Action by Annette McClain against the Chicago City Railway Company. From a judgment of the Appellate Court 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.

David K. Tone and H. M. Ashton, for appellee.

This is an appeal from a judgment of the Appellate Court for the First District affirming a judgment of the superior court of Cook county in favor of appellee for $2,500 for damages for personal injuries sustained by appellee as the result of an accident to appellant's train running south on Wabash avenue, in the city of Chicago, appellee being a passenger thereon, October 13, 1899.

The declaration consisted of two counts, in which it is averred, substantially, that appellee, while a passenger, in the exercise of ordinary care for her own safety, was injured by reason of appellant's careless and negligent management of the car in which appellee was riding. At the time of the accident appellant was operating a cable street car line in the city of Chicago having a double track. The north-bound track was on the east side of Wabash avenue and the south-bound track was on the west side. Appellee, a pregnant woman, accompanied by a little child, boarded the next to the last car of a train south bound at the corner of Madison street and Wabash avenue. Wabash avenue is intersected at right angles by Randolph, Washington, Madison, Monroe, and Adams streets and Jackson Boulevard from north to south, in the order named. The train in question was a grip car and two or three passenger cars. When the grip car reached Adams street, a large wagon, described by most of the witnesses as a coal wagon drawn by two horses, appeared in front of the train, going south. The testimony as to the distance of the wagon in front of the train varies, but a number of the witnesses seem to estimate it to have been about 50 feet. Appellee's witnesses claim this wagon was in the same track on which the train was. Appellant, however, contends it was on the other track, and suddenly was pulled over onto the track the train was on. Just south of this wagon was an express wagon, also going south. Quite a number of witnesses claim that these wagons had been moving along on the south-bound track, in front of the train, for a considerable distance, just prior to the accident. When the driver of the coal wagon noticed the train, he attempted to pull off the track to the west, but before he succeeded in doing so the grip car struck the wagon, demolishing it, and killing both horses. The train then continued running for a distance variously estimated from 50 to 200 feet, and ran into and demolished the express wagon. After colliding with the express wagon the cable appears to have become detached and the train was stopped. Several witnesses testified that just before the collision the conductor and gripman shouted to the passengers to jump to save their lives, and appellee and others did jump from the train. Appellee stated that she heard the conductor say ‘jump.’ She jumped, and landed on her hands and feet. A man and lady helped her up, took her to a dentist's parlor, and laid her on a couch, and gave her something to drink. After being somewhat restored, she was again assisted to the sidewalk, where she was waiting for a car, when a gentleman, who after proved to be a Mr. Weil, claim agent of appellant, came up to her, and engaged her in conversation, and finally procured a cab for her to go home in. He got in the cab with her, rode with her a short distance, told her he would have to have her name, and that if she got very sick the company would send her a doctor. He produced a piece of paper for her to sign her name on, and she signed it. He then threw some money in her lap and got out. Appellee states that during all that time she was having severe pains; that she did not read the paper, and no one else did for her; that she did not know how much money was left with her until she got home and her husband took it from her lap, and she found it amounted to $25; that she did not know what became of the money. The paper signed proved to be a release to the appellant of all damages sustained by reason of the accident, and appellant's agent, Mr. Weil, claims it was signed knowingly and understandingly by the plaintiff, and without any misrepresentation on his part. He also stated that he did not ask the plaintiff to make a settlement of her claim, but that when the cab approached Eighteenth or Nineteenth street the appellee asked him who was going to pay for her dress, which was drabbled with mud, and for the injury she had sustained, and he told her that if the claim was large he would have to refer it to the company, but if it was small he would take care of it himself; that she first asked $50, and he stated that if it was that much he would have to refer it to the company, and finally she said that if she got $25 right away she would be satisfied; that he then took out the release and read it to appellee, and while he was getting the money she started to write ‘$25,’ and he then stated to her that that was the place for her signature, and that appellee replied that she wanted him to pay for the cab, and she was going to put in there $25 and pay for the cab; that he told her that was not necessary, that he would pay for the cab; that he then paid appellee $25 and left the cab. There is a direct conflict in the evidence as to the procurement of the release. Counsel for appellant urge that the verdict is not justified by the evidence, that the evidence does not sustain the charge of negligence, that the release in question was a bar to recovery, and that the court should have directed a verdict for appellant as requested.

RICKS, C. J. (after stating the facts).

The record in this case, in our judgment, contains ample evidence tending to the conclusion that while appellee was a passenger upon one of appellant's cars it was being run at a high rate of speed along Wabash avenue, a crowded thoroughfare in the city of Chicago; that at least 50 feet in front of the train a wagon was being driven south along the track, and in front of this wagon was another, some distance ahead, going in the same direction, and on the same track; that the train, notwithstanding the opportunity to see these wagons ahead, proceeded onward with but little, if any, diminished speed; that it struck the first wagon, demolished it, killed the team that was hitched to it, and then passed on and collided with the next wagon, demolishing it also before it was stopped. There is also evidence tending to show that the gripman and conductor, about the time of the collision, told the passengers on the train to jump to save their lives, and many of them did jump, among the number being appellee, who, being in a pregnant condition, received serious injury, which confined her to her bed and induced pains and sickness until the birth of her child on December 21st following the accident; that the child was puny, and died shortly after its birth. In view of such evidence, tending to establish appellee's theory of negligence, notwithstanding the strenuous denial of appellant, the questions of negligence and the weight of the...