Chicago Union Traction Co. v. Ertrachter

• Decision Date: 19 June 1907
• Parties: CHICAGO UNION TRACTION CO. v. ERTRACHTER.
• Court: Illinois Supreme Court

228 Ill. 114

81 N.E. 816

CHICAGO UNION TRACTION CO.

v.ERTRACHTER.

Supreme Court of Illinois.

June 19, 1907.

Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; Thomas G. Windes, Judge.

Action by Mrs. Toni Ertrachter against the Chicago Union Traction Company. From a judgment of the Appellate Court, affirming a judgment for plaintiff, defendant appeals. Affirmed.

John A. Rose and Albert M. Cross (W. W. Gurley, of counsel), for appellant.

Whitman & Horner, for appellee.

CARTER, J.

This is an appeal from a judgment of the Appellate Court affirming that of the circuit court of Cook county for $3,100 in a case brought by appellee against appellant to recover damages for personal injuries. July 4, 1902, appellee and three of her children were passengers on a west-bound street car on Twelfth street, in the city of Chicago. The car on which appellee was riding stopped about a half block east of its western terminus, Fortieth avenue, and before reaching the switch leading from the northerly or west-bound track to the southerly or east-bound track. It is claimed by appellant that the car was stopped further east than it otherwise would have been, because of a blockade of cars. Shortly after the car had so stopped appellee attempted to alight. Appellant contends that the car started before appellee attempted to get off, and that there is no testimony tending to show that the man in charge knew that she was going to try to alight, while, on the other hand, it is contended that before the car started up the oldest girl got off, and that appellee had helped off the other two girls before she herself attempted to step off; that she then stepped down onto the running board along the side of the car, and was stepping from that when the car started, throwing her to the ground. The evidence on this point was conflicting, and hence the judgment of the Appellate Court affirming that of the lower court is conclusive in this court on that question. This is admitted by counsel for appellant; but they contend that the evidence was extremely close, and therefore this court should scrutinize with great care the questions of law involved in the hearing. In discussing the questions of law raised we do not wish to be understood as admitting appellant's contention that on this question the evidence was close.

The first contention is that the court erred in refusing for appellant instruction 3, which reads: ‘The burden of proof is not upon the defendant to show how the plaintiff came to fall. If the preponderance of the testimony does not show that she fell by reason of the car being suddenly and violently started, your verdict should be not guilty.’ Counsel urge that this court has frequently held that the plaintiff must recover, if at all, on the negligence charged in the declaration. This is undoubtedly the law. We cannot, however, agree with their claim that this instruction sets out substantially the only negligence charged against appellant by the declaration. The first count in the declaration charges that appellant caused its said cars ‘to be suddenly and violently started,’ but the second count charges that ‘the defendant carelessly and negligently caused said last-mentioned car to be started and moved,’ etc. There is nothing said in the second count about the car being suddenlyand violently started. Under this count appellee was not required to prove, by a preponderance of the evidence, ‘that she fell by reason of the car being suddenly and violently started.’ By the very rule invoked by appellant this instruction was properly refused.

It is further contended by appellant that the court improperly admitted evidence that appellee was delivered of a still-born child in January, 1903, and had a miscarriage in June, 1905. Counsel for appellant urge that this evidence was in no way connected with the accident, and that after the evidence was all in the trial court so concluded, and gave an instruction to the jury to disregard all this evidence. That instruction reads: ‘The plaintiff cannot recover anything in this case either because of the loss to her by reason of her child being born dead, or by reason of her miscarriage in June, 1905; but her recovery in this case, if you find, from the evidence, she is entitled to recover, must be confined to her personal injuries, if any, shown by the evidence, which she has suffered as the result of the negligence of the defendant as charged in the plaintiff's declaration.’ We do not understand from this that the court intended to instruct the jury that all the evidence as to the still-born child and the miscarriage was removed from their consideration. The extent and nature of the injuries, if any, which appellee suffered as a result of appellant's negligence, were questions of fact for the jury. All evidence that tended to show that the child was still-born, or that a miscarriage was caused as a result of the negligence of the defendant, as charged in the declaration, was properly admitted to the jury. South Chicago City Railway Co. v. McDonald, 196 Ill. 203, 63 N. E. 654;Chicago Union Traction Co. v. May, 221 Ill. 530, 77 N. E. 933. This instruction certainly states the law on this point in as favorable terms to appellant as could reasonably be required. Several physicians testified, for appellee, that the accident set out in the declaration could or might have caused the still-birth of the child in 1903 and the miscarriage in 1905. Appellant insists that this evidence is too conjectural to be admitted; that such evidence must show with reasonable certainty what the consequences are-not what might possibly follow. One of the physicians testified positively that in his judgment the accident caused the child to be still-born and the miscarriage. This answer was...