Chicago Union Traction Co. v. Lundahl

• Decision Date: 17 April 1905
• Citation: 74 N.E. 155,215 Ill. 289
• Parties: CHICAGO UNION TRACTION CO. v. LUNDAHL.
• Court: Illinois Supreme Court

215 Ill. 289

74 N.E. 155

CHICAGO UNION TRACTION CO.

v.LUNDAHL.

Supreme Court of Illinois.

April 17, 1905.

Appeal from Appellate Court, First District.

Action by August Lundahl, as administrator of the estate of Herbert S. Lundahl, deceased, against the Chicago Union Traction Company. From a judgment in favor of plaintiff, affirmed by the Appellate Court, defendant appeals. Affirmed.

This is an action on the case, brought on May 8, 1902, by the appellee, as administrator of the estate of Herbert S. Lundahl, deceased, against the appellant company, to recover damages for an injury resulting in the death of appellee's intestate. The trial resulted in verdict and judgment in favor of the appellee, which judgment has been affirmed by the Appellate Court, and the present appeal is prosecuted from such judgment of affirmance.John A. Rose and Albert M. Cross (W. W. Gurley, of counses), for appellant.

E. C. Wood and Elmer & Cohen, for appellee.

MAGRUDER, J.

The errors relied upon by the appellant for reversal are two only: First, the refusal of the peremptory instruction in writing requested by the appellant at the close of all the evidence, directing the jury to find the defendant not guilty; and, second, ‘the ruling of the trial court in admitting evidence that the companion with deceased had 20 cents in his possession, there being no evidence that the deceased had any money to pay fare, or that the companion intended to pay the fare of deceased.’

1. The refusal of the court to instruct the jury to find the appellant not guilty raises the question whether there is any evidence in the record fairly tending to support the cause of action, and, if there was evidence tending to establish the cause of action in this case, it was not error for the court to refuse a peremptory instruction to the jury to find the defendant not guilty. Chicago City Railway Co. v. Martensen, 198 Ill. 511, 64 N. E. 1017;Chicago City Railway Co. v. Loomis, 201 Ill. 118, 66 N. E. 348;Missouri Malleable Iron Co. v. Dillon, 206 Ill. 145, 69 N. E. 12;Graver Tank Works v. O'Donnell, 191 Ill. 236, 60 N. E. 831;Chicago & Alton Railroad Co. v. Eaton, 194 Ill. 441, 62 N. E. 784,88 Am. St. Rep. 161.A careful examination of the evidence shows that there was proof tending to establish the fact that the deceased was in the exercise of ordinary care for his own safety at the time when the accident occurred, and that the appellant company was guilty of such negligence as caused the accident which resulted in the death of the deceased. The deceased, plaintiff's intestate, was a boy 10 years and 8 months old. On November 16, 1901, he went with his cousin, a boy older than himself, and about 12 years of age, to the southwest corner of North Clark and Elm streets. His companion and cousin 12 years old was named Ernest Anderson, and lived with his parents at 450 Clark street. The deceased, Herbert S. Lundahl, 10 years and 8 months old, lived on the West Side. The evidence tends to show that on the day in question, which is described by one or more of the witnesses as being a clear day, the two boys at about 1 o'clock in the afternoon went to the corner already named for the purpose of taking the car coming from the north and proceeding southward. There is some conflict in the testimony as to where the boys were standing when the south-bound train came along. The evidence of the plaintiff tends to show that they were about four feet east of the sidewalk curbing on the west side of the street at the southwest corner of Elm and Clark streets. The train bound southward consisted of a grip car and two trailers in the rear of the grip car. The evidence of the plaintiff tends to show that as the train approached the corner in question, the older boy, Ernest Anderson, raised his hand as a signal to the train to stop, and that the train slackened its movement, and, in the language of some of the witnesses, ‘almost came to a standstill,’ although it did not entirely stop. The expression in the testimony is that it ‘began to slow up.’ The boy Anderson says, ‘It stopped slow like, still.’ When the movement of the car was thus slackened, the elder boy succeeded in getting upon the front platform of the trailer next to the grip car. The deceased attempted to get upon the platform of the hindmost car, and succeeded in getting hold of the rail with one hand and in putting his foot upon the step of the platform. While he was in this position, the car was suddenly and rapidly moved forward with what the witnesses call ‘a sort of jerk,’ which had the effect of throwing the deceased from the car upon the ground, and after he had fallen to the ground the car passed over his body and killed him.

The testimony on the part of the appellant company contradicts in important particulars the evidence introduced in behalf of the plaintiff. The servants of the appellant company in control of the train say that no signal was given to stop the train; that they did not see the boys; and that the motion of the cars was not slackened, but that they passed the crossing at the usual speed. While, however, the testimony is conflicting, it cannot be said that there was no testimony tending to sustain the cause of action. If the testimony of the witnesses for the plaintiff was true, the plaintiff established his cause of action, and was entitled to recover. Whether it was true or not was a matter for the determination of the jury. The testimony is uncontradicted that the point at which the witnesses in behalf of the plaintiff testified that the car slackened its motion, and at which the testimony of plaintiff's witnesses tended to show that the boy Anderson raised his hand as a signal for the car to stop, was the usual place for the stopping of the cars to take on passengers. The point in question was at the southwest corner of Clark and Elm streets, being the south side of Elm street, where a train of cars coming from the north would cross it. The two boys were standing together, and the signal given by the older boy was given in behalf of both of them. The fact that the car slackened its motion and almost stopped tends to confirm the statement of plaintiff's witnesses that the older boy did raise his hand as a signal for the train to stop, and that the gripman saw the signal. There is no evidence to the effect that anybody else than the boy Anderson gave a signal to the train to stop, and it would not be likely to slacken its motion in the way indicated by the witnesses unless the parties in control of the train had received such a signal. The slackening of the movement of the train so as to make it almost stop in obedience to the signal alleged to have been given was an invitation to the boys to get upon the train.

The fact that the train was moving slowly when the attempt was made to board it is not evidence of negligence per se. It has been held by this court in a number of cases that ‘it is not negligence per se to get on or off a slowly moving car, whether propelled by horse power or electricity or cable.’ Cicero & Proviso Street Railway Co. v. Meixner, 160 Ill. 320, 43 N. E. 823,31 L. R. A. 331;North Chicago Street Railroad Co. v. Wiswell, 168 Ill. 613, 48 N. E. 407;North Chicago Street Railroad Co. v. Williams, 140 Ill. 275, 29 N. E. 672;Springfield Railway Co. v. Hoeffner, 175 Ill. 634, 51 N. E. 884;Chicago Union Traction Co. v. Hanthorn, 211 Ill. 367, 71 N. E. 1022. The question whether the boarding of a street car in motion is or is not negligence is a question of fact to be submitted to the jury for their determination under the instructions of the court, and the decision of the question will depend upon the facts and circumstances of each case, rather than upon any fixed or absolute rule as to what constitutes negligence.

In Cicero & Proviso Street Railway Co. v. Meixner, supra, this court, quoting from Booth on Street Railway Law (section 336), said (page 325 of 160 Ill., page 825 of 4o N. E. ): ‘It is a general rule, established by numerous decisions, that if a person who has the free use of his faculties and limbs has given proper notice of his desire to be taken up, and the speed of the car has been slackened in the usual manner, it is not negligence per se to attempt to get on while it is moving slowly, and that if a person is injured under such circumstances the question of his contributory negligence is ordinarily one of fact for the jury.’ In the same case it was also said: ‘It is well known, also, that street car companies tacitly invite many passengers to board and alight from their cars by checking up to a slow rate of speed, and immediately starting up at a greater speed when the passenger is safely aboard, or has alighted. It would be impossible for a court to lay down the rule as to what particular rate of speed would be sufficient notice to a passenger that, if he attempted to get on or off, he would be held guilty of contributory negligence. It would also be a great hardship and unjust to lay down a general rule that a passenger attempting to board a street car while in motion at all should be held in...