Chicago Rys. Co. v. Kramer

• Decision Date: 18 April 1916
• Docket Number: 2230.
• Citation: 234 F. 245
• Parties: CHICAGO RYS. CO. v. KRAMER.
• Court: U.S. Court of Appeals — Seventh Circuit

234 F. 245

CHICAGO RYS. CO. v. KRAMER.

No. 2230.

United States Court of Appeals, Seventh Circuit.

April 18, 1916

[Copyrighted Material Omitted]

Charles Le Roy Brown, of Chicago, Ill., for plaintiff in error.

C Helmer Johnson and Arthur H. Chetlain, both of Chicago, Ill for defendant in error.

Before KOHLSAAT, MACK, and ALSCHULER, Circuit Judges.

MACK Circuit Judge.

Writ of error to reverse a judgment for $3,350 against the plaintiff in error in an action against it and the Chicago City Railway Company. Diversity of citizenship is the ground of federal jurisdiction. At the conclusion of the plaintiff's case, the defendant the Chicago Railway Company moved for a directed verdict. The motion was overruled, and it rested its case. Thereupon the defendant Chicago City Railway Company offered evidence tending to establish its freedom from negligence. At the conclusion of the entire case each defendant moved for a directed verdict on each count of the declaration separately. All motions were overruled, the cause was submitted to the jury, and a verdict was rendered in favor of the Chicago City Railway Company and against the Chicago Railways Company.

Plaintiff's injuries were received under the following circumstances: She had just stepped upon the rear platform of a south-bound street car standing at the north side of the intersection of Western avenue and Twelfth street in Chicago and owned and operated by the Chicago City Railway Company, when another south-bound car, owned and operated by the Chicago Railways Company, came into collision with the rear platform of the Chicago City Railway Company's car, breaking it and bending the front end of the other car. Plaintiff introduced no evidence as to the condition of the brakes or stopping apparatus. The track on Western avenue was owned, operated, and under the control of the Chicago Railways Company, and was used by the Chicago City Railway Company for the operation of through route cars under an ordinance of the city of Chicago passed in February, 1907.

The section of the ordinance relating to the Chicago City Railway Company introduced in evidence provides as follows:

'The company will co-operate with any corporation or corporations operating such of the street railway lines now operated by the receivers of the Chicago Union Traction Company as may be parts of the through routes in this ordinance or in 'Exhibit C' referred to, in establishing and maintaining through lines of cars over the street railway lines of the company and the street railway lines of the Union Traction System entering the South Division of the said city, north of Twelfth street, which shall carry passengers from the South Division of the said city to the other two divisions of the said city, or in the reverse directions, through the portion of the South Division of said city north of Twelfth street, for a single fare.'

That relating to the Chicago Railways Company reads:

'The company will co-operate with any corporation or corporations operating such of the street railway lines now operated by the Chicago City Railway Company as may be parts of the through routes in this ordinance or in 'Exhibit C' referred to, in establishing and maintaining through lines of cars over the street railway lines of the company and the street railway line of the Chicago City Railway system entering the South Division of the said city north of Twelfth street, which shall carry passengers from the North and West Divisions of the said city to the South Division of the said city, or in the reverse directions, through the portion of the South Division of said city north of Twelfth street, for a single fare.'

Exhibit C therein referred to provides as follows:

'Route No. 10: 'Beginning at Seventy-First street and Western avenue; north on Western avenue to Belmont avenue, returning by the same route."

It was stipulated that, in accordance with the provisions of the ordinances and the acceptance thereof by each of the defendant companies, the operation of the through route cars by the one company over tracks belonging to the other was under the direction and supervision of a board of supervising engineers appointed by the city of Chicago, and under the directions of this board each company was required to permit the other to operate cars over its various lines and to give and receive transfers therefor.

Errors in the charge and in denying the Chicago Railways Company's motions are based on its contentions made in the trial court and renewed in this court that the plaintiff was a passenger of the Chicago City Railway Company alone; that the Chicago Railways Company was a stranger to her, and owed her the duty, not of the highest degree of care, but only of ordinary care; that the collision alone under the circumstances narrated did not justify the application of the principle of res ipsa loquitur at least as against it, the stranger company; and that in any event the total failure of affirmative proof of the specific negligence charged against it in at least one of the counts, namely, a negligent failure to keep the equipment of its car in proper order, makes the refusal of the court to grant this defendant's motion for an instruction in its favor on this count reversible error.

1. In Illinois, the liability of a lessor public service company for the acts and omissions of its lessee, is well established. As declared in Anderson v. West Chicago Street Railway Company, 200 Ill. 329, 333, 65 N.E. 717:

'The relation * * * is not that of landlord and tenant, but that of principal and agent, or master and servant.'

While in some of the lower federal courts it has been said that in the determination of the relation between lessor and lessee company and the liability of the former for the latter's acts, the federal courts will not deem themselves bound by the state court's views in the absence of a controlling statute, we are of the opinion that under N.C.R. Co. v. Zachary, 232 U.S. 248, 34 Sup.Ct. 305, 58 L.Ed. 591, Ann. Cas. 1914C, 159, and I.C.R.R. Co. v. Sheegog, 215 U.S. 308, 30 Sup.Ct. 101, 54 L.Ed. 208, the local law, as interpreted by the state court, controls. While each of these cases originated in the state court, it is to be noted that in the Zachary Case the question involved was the interpretation of the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. 1913, Secs. 8657-8665)), and that, while the state Supreme Court held this inapplicable to an intrastate lessor corporation not itself actually engaged in interstate commerce, the federal Supreme Court held it to be a necessary result of the local law, constituting the lessee the lessor's substitute or agent, and making the latter responsible for the former's acts and omissions, whether in interstate or in intrastate commerce, that 'the lessor is a common carrier by railroad engaging in commerce between the states,' and that an employe of the lessee is employed by such lessor in interstate commerce, within the meaning of the federal act.

The statement in the Sheegog Case, 'Now whether we agree with it or not, the doctrine is familiar that in the absence of statute a railroad company cannot get rid of its liability attached to the exercise of its franchise by making a lease,' was not intended, in our judgment, to cast any doubt upon the views expressed in Railroad Company v. Barron, 5 Wall. 90, 18 L.Ed. 591. There the action was begun in the federal court. The defendant was the owner of the road and the actual carrier of the passenger. It was held liable for the negligence of another company operating by consent, on its road. The court said that the liability had 'been settled, and we think rightly, in the courts of Illinois holding the owner of the road liable.'

We are unable to see any real distinction between the lessor and lessee cases and the present case. The Chicago Railways Company was the owner of the track and furnished the motive power. It had the right and the duty to operate its own cars thereon. The privilege granted to the Chicago City Railway Company to operate its through cars over the Chicago Railways Company's tracks was necessarily with the consent and permission of the latter company, a consent evidenced by its acceptance of the ordinance. The Chicago City Railway Company while operating its cars over the tracks and under the electric power furnished by the Chicago Railways Company was performing the public duty of the latter company as its agent or substitute in the same measure as a lessee company to which similar privileges had been granted. It follows that, while the plaintiff was a passenger of the Chicago City Railway Company, she was also as a matter of law a passenger of the Chicago Railways Company and entitled to the exercise by each of them of the same degree of care.

2. Plaintiff's rights, therefore, are the same as would have arisen if her injuries had been caused, under similar circumstances, by a collision of two cars, both belonging to the defendant Chicago Railways Company. In such a case,...