Chicago Union Traction Co. v. Mee

• Decision Date: 24 October 1905
• Citation: 75 N.E. 800,218 Ill. 9
• Parties: CHICAGO UNION TRACTION CO. et al. v. MEE.
• Court: Illinois Supreme Court

218 Ill. 9

75 N.E. 800

CHICAGO UNION TRACTION CO. et al.

v.MEE.

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Appellate Court, First District.

Action by Thomas Mee against the Chicago Union Traction Company and others. Judgment for plaintiff, affirmed by the Appellate Court, and defendants appeal. Reversed.

Rehearing denied December 6, 1905.

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

James McShane, for appellee.

This is an action in case, brought by the appellee against the appellant companies to recover damages for a personal injury resulting from a collision between a street car and a wagon. The plea to the declaration was the general issue. The trial of the cause resulted in judgment and verdict in favor of the appellee for $8,000. This judgment has been affirmed by the Appellate Court, and the present appeal is from such judgment of affirmance. The declaration as finally amended alleges, among other things, as follows: ‘That on September 9, 1901, the Chicago West Division Railway Company was the owner of a certain street railway extending along Twelfth street in the city of Chicago, and that before that time the said Chicago West Division Street Railway Company had surrendered and delivered possession and control of said railway to the West Chicago Street Railroad Company, and said latter company afterward, and prior to the time of the injury complained of, delivered and surrendered possession and control of said railway to the defendant, the Chicago Union Traction Company; that the last-named company from said time to, and subsequent to the time of the injury aforesaid, was possessed of and operated said railway and certain street cars thereon as a common carrier of passengers for hire; that the plaintiff at the time and place aforesaid became and was accepted by the defendant, the Chicago Union Traction Company, as a passenger for hire on one of said defendant's street cars, which it was then and there operating eastward on said railway; that, when said car reached the vicinity of May street and said railway, the defendant, the Chicago Union Traction Company, through its servants in charge of the management and operation of said car, then and there so recklessly, carelessly and negligently ran, managed and operated said car that as a direct result, and in consequence of said reckless, negligent and careless manner in which said servants ran, managed and operated said car, the said car then and there ran into and collided with great force and violence against a certain wagon then and there on said street, and the plaintiff, while he was riding on said car as such passenger for hire, and while he was exercising ordinary care and caution for his own safety, was thereby then and there, as a direct result of said collision, crushed and injured, and his left arm was crushed, sprained, dislocated and broken,’ etc.

MAGRUDER, J. (after stating the facts).

When the injury for which damages are sought in the present suit happened to appellee, he was riding on one of appellants' cars, traveling eastward on Twelfth street. There were two tracks in the street. On the north one of these tracks cars ran westward, and on the south track cars ran eastward. Appellee was in the car on the south track and was approaching May street, which crosses Twelfth street and runs north and south. There was a fire engine and truck house on the south side of Twelfth street just west of May street, and partly in May street itself. The accident happened on September 9, 1901, and the car in which appellee was riding was an open car with an aisle running through the center and short seats on either side of the aisle, some facing towards the front of the car and some facing towards the rear of the car. Appellee was sitting on the first seat next to the partition, which was partly glass, between the front platform of the car and the body of the car. He was facing westward, and therefore had his back towards the front of the car. As the car going eastward approached May street, there was a wagon proceeding eastward in front of the car, and upon the south track of the appellant companies, in Twelfth street. Just before the car reached the engine house on May street, the driver of the wagon turned south with a view of leaving the track. The wagon was what was known as a hay wagon, used for hauling hay, and upon it was a large platform some 16 feet long, and projecting two or three feet on each side over the wheels of the wagon. It is conceded that, when the accident occurred, the driver had turned his horses and also the front wheels of the wagon out of the track southward. The dispute between the parties is whether or not the driver had driven his wagon entirely off the track before the collision occurred, or whether the car advanced against the wagon before it left the track. The front of the car appears to have passed the wagon without injury, but the middle of the car struck the northwest corner of the wagon, and several of the stanchions of the car were broken, and one or more of the seats were torn out, and plaintiff was thrown out of the car and injured.

The theory of the appellee is that the motorman who was propelling the car ran the car into the end of the wagon before it had left the track, and while a part of the rear of the wagon was still on the track. The theory of the appellants is that the wagon had left the track, and had gone a sufficient distance south of the south rail of the track to justify the motorman in moving the car along with a view of passing the wagon; that, after the driver of the wagon had driven his wagon off the track, he ran against a telephone or telegraph pole, standing on the south side of Twelfth street and near the sidewalk curb, and was thereby forced to back his wagon, so as to run against and strike the car. Appellants contend that, when the horses or the pole of the wagon ran against the telephone pole, either the driver backed his wagon, or the horses themselves involuntarily backed, so as to push the wagon against the car. It is urged in support of this theory that the front part of the car was not struck, but the middle of the car was struck, showing that a portion of the car had passed the wagon before the collision occurred. On the one side, it is contended that the motorman ran his car into the wagon before it left the track, and, on the other side, it is contended that the motorman was moving his car along after the wagon had left the track, but that the wagon backed in the way stated, and struck his car. If the theory of the appellee is correct, then the appellants were guilty of negligence in attempting to move the car or train of cars along the track before the wagon had left it. If, however, the theory of the appellants is true, then the collision occurred because of the backing of the wagon onto the track after it had left the same and the consequent striking of the car by the wagon, in which latter case the collision was not the fault of the appellants, but was either the fault of the driver of the wagon, or was an inevitable accident. The appellee introduced testimony on the trial below tending to show that the wagon had not left the track when it was struck by the car. The appellants introduced testimony tending to show that the wagon left the track and then backed against the car and struck it. There was a sharp conflict in the testimony as to whether or not the wagon had actually left the track when the collision occurred, or whether it backed up against the car after it had left the track. In view of this conflict in the evidence it was important that the jury should be correctly instructed as to the law of the case.

Appellants assign as error the giving of certain instructions on behalf of the appellee by the trial court, and the refusal of certain instructions asked by the appellants. In the view we take of the case it is only necessary to consider the action of the court in refusing to give...