Chicago City Ry. Co. v. Tuohy

• Decision Date: 16 April 1902
• Citation: 196 Ill. 410,63 N.E. 997
• Parties: CHICAGO CITY RY. CO. v. TUOHY.
• Court: Illinois Supreme Court

196 Ill. 410

63 N.E. 997

CHICAGO CITY RY. CO.

v.TUOHY.¹

Supreme Court of Illinois.

April 16, 1902.

Appeal from appellate court, First district.

Action by John Tuohy, by his next friend, against the Chicago City Railway Company. From a judgment of the appellate court (95 Ill. App. 314) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.Wm. J. Hynes, Samuel S. Page, and Watson J. Ferry (Mason B. Starring, of counsel), for appellant.

Altgeld, Darrow & Thompson and P. A. Hines, for appellee.

This is an action on the case, begun on February 24, 1896, by the appellee against the appellant company, to recover damages for a personal injury. The trial in the circuit court resulted in verdict and judgment in favor of appellee. This judgment has been affirmed by the appellate court. The present appeal is prosecuted from such judgment of affirmance. The appellee, a boy between five and six years of age, was on April 17, 1895, struck by one of the electric cars of the appellant company on Thirty-Fifth street, in the city of Chicago, near the corner of Wood street. The car ran over the appellee, and crushed his leg in such a way that it had to be amputated at a point about one-third below the knee. Thirty-Fifth street runs east and west, and Wood street runs north and south. When the injury occurred, the car which struck the appellee was coming from the west and going east on Thirty-Fifth street. The evidence tends to show that the injury occurred about 20 feet east of the crossing or intersection of Wood street with Thirty-Fifth street. The next street west of Wood street, running north and south, which crosses Thirty-Fifth street, is Honore street; and the next street west of Honore street, running north and south, which crosses Thirty-Fifth street, is Lincoln street. The next street east of Wood street, running north and south, and which crosses Thirty-Fofth street, is Hermitage avenue.

MAGRUDER, J. (after stating the facts).

1. At the close of the evidence of appellee (the plaintiff below), the appellant (defendant below) asked the court to give the jury a written instruction to return a verdict of not guilty. This instruction was refused, and exception was taken to such refusal. At the close of all the testimony in the case, the defendant below again presented to the court a written instruction directing the jury to return a verdict of not guilty, and asked the court to give such instruction. The court refused to do so, and exception was taken to such refusal. The question is thus raised whether or not the evidence justified the court in submitting the case to the jury. Where the evidence before the jury, with all the inferences proper to be drawn therefrom, tends to prove the cause of action set out in the declaration, the court should not peremptorily direct the jury to return a verdict of not guilty. Bridge Co. v. Teehan, 190 Ill. 374, 60 N. E. 533.

The cars of the appellant upon Thirty-Fifth street were propelled by electricity by means of electric wires strung overhead, and were known as ‘trolley cars.’ There were two tracks laid in Thirty-Fifth street; the cars going east running upon the south track, and the cars going west running upon the north track. The car which inflicted the injury had stopped at Lincoln street, two blocks west of Wood street, to take on a passenger, but after that did not stop until it passed beyond Wood street to the point where the appellee was injured. Just before the accident the appellee was standing in company with another boy, 11 years old, named Thomas Bonner, near the intersection of Wood street and Thirty-Fifth street, on the south side of Thirty-Fifth street, and near the corner made by the intersection therewith of Wood street. The sidewalk was about 14 feet wide between the curb and the building line of the houses fronting upon the street. The space between the curb at the edge of the sidewalk and the south rail of the appellant's south track was about 12 feet. At that time appellee lived with his father and mother on Thirty-Fourth court, near the corner of an alley west of Wood street, and not much farther than a block or a block and a half from where the accident occurred. The boy Thomas Bonner lived with his father on Wood street, about a block and a half from where the appellee lived. Frank Bonner, the father of Thomas Bonner, was a lamplighter in the employ of Michael J. Tuohy, appellee's father. The accident occurred about 5 o'clock in the afternoon. There was a lamp-post about 82 feet east from the southeast corner of Wood and Thirty-Fifth streets. Frank Bonner had sent his son, the boy Thomas Bonner, to the house of appellee's father, to get a filler of oil for the purpose of filling some of the street lamps. Upon going to the house of appellee's father to get the oil, appellee asked permission to accompany Thomas Bonner, and his mother permitted him to do so. They went south, and crossed the tracks, and stood near the corner of Wood and Thirty-Fifth streets, on the south side of Thirty-Fifth street, while Frank Bonner, the father, was lighting the lamp, distant 82 feet from the corner, or thereabouts. Frank Bonner had requested the boys to stand at the corner until he finished lighting the lamp. There is testimony in the record tending to prove that the car which caused the injury was traveling at an unusually high rate of speed; that is to say, from 14 to 16 miles an hour, according to the testimony of some of the witnesses. There is also evidence tending to show that no bell was rung or gong sounded upon the approach of the car to the street crossing.

It is incumbent upon those in control of a street car to exercise a greater degree of care or watchfulness at street intersections than at other places along the route. Booth, St. Ry. Law, § 306; Railroad Co. v. McCallum, 169 Ill. 240, 48 N. E. 424; Railway Co. v. Robinson, 127 Ill. 9, 18 N. E. 772,4 L. R. A. 126, 11 Am. St. Rep. 87. Drivers, gripmen, and motormen of street cars are obliged at all times to exercise reasonable care in the conduct of their cars; but the requirement of reasonable care imposes upon them a more exacting attention when they approach street crossings in a crowded city, where vehicles and pedestrians may always be expected in front of them. ‘The failure under such circumstances to ring the bell, sound the gong, or give other proper warning, * * * is undoubtedly evidence of negligence to be submitted to a jury under all the circumstances,’ whether there is an ordinance requiring such precautions or not. The increase of danger to the public at such crossings demands a corresponding increase of vigilance and energy on the part of such drivers, gripmen, and motormen. They ought to notice whether or not the track is clear when they approach such public crossings, and sound the gong as warning. 2 Thomp. Neg. §§ 1399-1401.

Counsel for appellant insist that the appellee was not at the crossing. While this may be strictly and technically a correct statement of the facts, yet the evidence tends to show that the appellee was struck only about 20 feet east of the crossing, and so near thereto as to have required a slackening of the speed of the car. The evidence tends to show that the boys had been instructed by the father of one of them to stand at the corner until he had finished lighting his lamp, and, while they may have moved a short distance east of the corner, they were near enough thereto to demand of the appellant the exercise of the care required in propelling its cars across a street crossing.

Even, however, if the party injured was not sufficiently near the crossing to justify the application of the increased vigilance required of a street car company in approaching a crossing, yet there is evidence tending to show that the speed of the train was unreasonable and dangerous. Street cars propelled by electricity cannot be lawfully run at a rate of speed which is incompatible with the lawful and customary use of the highway by others. Here the appellee had as much right to be upon the street as the appellant. 2 Thomp. Neg. § 1395. A street railway company has no property interest in the street, and therefore no right to run its cars at a rate of speed which will interfere with the customary use of the street by others of the public with safety. Such cars can be more readily and quickly stopped than the train of an ordinary railroad. Where the motorman or gripman runs his car at such a rate of speed that he is prevented from keeping control of it, so as to stop it within a reasonable distance upon an appearance of danger to others, the rate of speed at which he propels the car is to be deemed unreasonable or dangerous. It has been held that, where an electric car was running at the rate of 10 or 11 miles an hour over a crossing in a much-frequented street, without giving any signal, there was such evidence of negligence as justified a submission of the case to a jury. 2 Thomp. Neg. §§ 1395-1397.

The evidence in the case tends to show that, when Frank Bonner had finished lighting the lamp and came down from the ladder, the appellee, with his face towards the track, stepped down from the curbing at the edge of the sidewalk to the street, and then turned around, and while backing towards the northwest, and towards the south track, he talked with the other boy, standing upon the sidewalk or curb with his oil can. While he was thus backing towards the track, the train was coming at an unusually high rate of speed. The boy Thomas Bonner says that the appellee had reached the south rail of the track, and had his foot over it, when he (the witness) discovered that the train was about to strike the appellee. Thomas Bonner then says that he hallooed to appellee to look out and went forward to pull him away from the car; that the car was within 15 feet of the appellee before witness saw the car; that he did not see the car until it had advanced about 5 feet...