Chicago City Ry. Co. v. Jennings

• Decision Date: 15 June 1895
• Citation: 41 N.E. 629,157 Ill. 274
• Parties: CHICAGO CITY RY. CO. v. JENNINGS.
• Court: Illinois Supreme Court

157 Ill. 274

41 N.E. 629

CHICAGO CITY RY. CO.

v.JENNINGS.¹

Supreme Court of Illinois.

June 15, 1895.²

Appeal from appellate court, First district.

Action on the case by M. C. Jennings against the Chicago City Railway Company. Plaintiff obtained judgment, which was affirmed by the appellate court. 57 Ill. App. 376. Defendant appeals. Affirmed.

Lee & Lawrence and W. J. Hynes, for appellant.

M. C. Jennings, in pro. per.

MAGRUDER, J.

This is an action brought by appellee, M. C. Jennings, against the Chicago City Railway Company, appellant, to recover damages for injuries to appellee's phaëton or buggy caused by a collision between it and a train of appellant's cars. The declaration avers: ‘Plaintiff was riding in a certain carriage, commonly known as a ‘Goddard phaëton,’ then and there drawn by a certain horse upon and along the said street, Cottage Grove avenue. And the defendant was then and there possessed of a certain motor or grip car, used by said defendant to propel certain passenger cars, known as ‘street cars,’ along and on said Cottage Grove avenue, by means of a wire rope or endless cable, and the said motor car had then and there attached thereto certain of said passenger cars, and which motor and train of said cars were then and there under the care and management of drivers, then servants of the defendant, who were then and there driving the same upon and along the said street, Cottage Grove avenue, near to or about where said Cottage Grove avenue intersects or meets Seventieth street of said city, as aforesaid, and while plaintiff, with all due care and diligence, was then and there riding in the said carriage along and on the said Cottage Grove avenue, at or near to where the latter meets Seventieth street, as aforesaid, upon the said public highway there, the defendant then and there, by its said servants, so carelessly and improperly drove and managed the said motor and train of cars that, by and through the negligence and improper conduct of the defendant, by its said servants in that behalf, the said motor and train of cars then and there ran into and struck with great force and violence upon and against the said carriage, and did by said force and violence then and there crush and destroy the said carriage, and render the same of no value whatever to plaintiff.' To this declaration a general and special demurrer was filed; grounds of special demurrer being that the allegation that the defendant carelessly and improperly drove and managed its train of cars is vague, uncertain, and indefinite, and fails to inform defendant wherein the negligence complained of consisted, and also that said declaration fails to set forth whether the plaintiff was driving personally, or whether his servant had charge of the carriage in question, and, if the said carriage was driven by a servant, whether the servant was free from negligence. The court overruled the demurrer, the defendant electing to stand by it. There was judgment by default for $160, and an appeal to the appellate court, which rendered a judgment affirming the ruling of the court below. The appellate court granted a certificate of importance, and the case is here by appeal from the judgment of affirmance rendered by that court.

The charge which the special demurrer makes against the declaration is that of vagueness, uncertainty, and indefiniteness and failure to state wherein the negligence complained of consisted. We are inclined to think that the declaration is not justly subject to the criticism made upon it, and that, therefore, the trial court properly overruled the special demurrer to it. ‘A general statement of facts, which admits of almost any proof to sustain it, is objectionable.’ 1 Chit. Pl. p. 232. ‘Facts only are to be stated, and not arguments or inferences.’ Id. p. 213. But, in alleging a fact, ‘it is unnecessary to state such circumstances as merely tend to prove the truth of it.’ Id. p. 225. In other words, it is not only a rule of pleading that the statement of facts must not be so general as to admit of almost any proof to sustain it, but it is also a ‘familiar rule of pleading which forbids alleging the evidence.’ The two rules should be harmonized, and the two extremes which they respectively define should be avoided. Railroad Co. v. Dunlap, 29 Ind. 426. The facts must be set forth with certainty; that is to say, there must be ‘a clear and distinct statement of the facts which constitute the cause of action or ground of defense, so that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court who are to give judgment.’ 1 Chit. Pl. p. 233.

We think that the declaration in the case at bar sufficiently fulfills the requirements of the definitions thus given. The declaration alleges that the defendant was possessed of a motor or grip car, which had passenger or street cars attached to it; that it used this grip car to propel the passenger cars along the street or avenue by means of a wire rope or endless cable; that the motor or grip and cars were under the care and management of drivers, servants of the defendant, who were driving the same upon the street near to the place where it intersected another street; that the defendant, by its said servants, so carelessly and improperly drove and managed the motor and train that, by the negligence and improper conduct of the defendant, by its said servants, the motor and train ran into the carriage of the plaintiff while the latter was riding with due care along the public highway near the intersection of the two streets. It is well known that the grip car is propelled, not only by the action of the driver on the car, who has his hand upon the grip, but also by the operation of the machinery with which the cable is connected at a distant part of the line. It was the duty of the company to see to it that these appliances were reasonably safe, and that they were under the management of competent servants. The driver of the car should have the mechanical power propelling it under his control, and should so exercise this control as to avoid injury, if possible. The company has not the exclusive right to the use of the public streets, but only to the use of them jointly with the balance of the public, and therefore its servants must take notice of the numbers of travelers liable to be on the streets at street crossings, and must exercise the care demanded by the increased danger at such points. Booth, St. Ry. Law, §§ 304-307; 23 Am. & Eng. Enc. Law, pp. 1019-1024. The declaration specifically charges, as the act of negligence for which the company was responsible, that the servants or drivers placed in control of the propelling power which moved the cars managed and drove the same carelessly and improperly, and that the collision at the crossing was due to their negligence ‘and improper conduct.’ Where a declaration charges that the employés of a railroad company carelessly and negligentlyrun its train of cars over its road, it sufficiently states an act upon which the charge of negligence and carelessness is predicated. Railroad Co. v. Chester, 57 Ind. 297. The approved forms in the books of precedents seem to justify some generality in the averment of negligence; that is to say, they do not require an allegation of all the particular facts constituting the negligence. Railroad Co. v. Dunlap, supra. Although Chitty, in the first volume of his work on Pleading, deprecates a statement of facts which is too general in its character, yet, in the second volume, he prescribes a form of declaration which has been followed almost literally by the appellee in framing the declaration in the case at bar. 2 Chit. Pl. pp. 710, 711. The declaration of appellee not only conforms to the precedent in Chitty, but also to the precedents set forth in the following books: Yates, Pl. p. 396; 1 Har. Ent. p. 351; 2 Humph. Prec. 807, 808; 8 Went. Pl. p. 396.

Counsel say that the precedents referred to are cases where, in collisions between carriages on the highway, or between boats on the water, the driver of the horses fails to drive and manage them properly, or the...