Chicago Union Traction Co. v. Giese

Decision Date23 October 1907
Citation229 Ill. 260,82 N.E. 232
PartiesCHICAGO UNION TRACTION CO. v. GIESE.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

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

Action by Albert Giese against the Chicago Union Traction Company. From a judgment of the Appellate Court for the First District affirming a judgment for plaintiff, defendant appeals. Reversed and remanded.

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

Wickett, Meier & Booth, for appellee.

Company, in which a judgment against the street car company for $2,000 has been affirmed by the Appellate Court for the First District.

The declaration consists of three counts, the first and second of which charge that the defendant, by its servants, carelessly, improperly, and negligently drove and managed a train, consisting of two coaches, so that the rear car struck the wagon of the plaintiff in which he was riding, and thereby he received the injuries complained of.

The charge of negligence in these two counts is general.

The third count charged that the defendant negligently drove a train of two cars at so high a rate of speed that the rear car necessarily and unavoidably left the track, and through the negligence of its servants the car struck the wagon of the plaintiff, thereby injuring him.

On May 7, 1902, the appellee and his son, a boy 11 years of age, were going west on Division street, in the city of Chicago, in a wagon drawn by one horse.

Appellee was sitting on the north end of the seat, and his son by his left side.

Appellee was driving, and his wagon was in the tracks of appellant used for its west-bound cars.

There were tracks immediately south and parallel to the tracks upon which appellee was driving upon which appellant ran its east-bound cars.

On the south, and almost immediately opposite the place where the injury occurred, appellant's car barns were located, from which tracks ran north, connecting by a sharp curve with the tracks on Division street.

A train, consisting of a motor car and a trailer, came out of the car barn, and while passing around the curve to reach the east-bound track the front wheels of the trailer left the track and collided with the wagon on which appellee was riding on the west-bound tracks.

Appellee offered no evidence of any defect in the track or the construction of the car, and the only evidence relating to the management of the car is the statement by appellee that the car came around the curve ‘fast,’ and by appellee's son that the car was ‘coming out pretty fast.’ The errors relied upon for a reversal are the overruling of appellant's motion to direct a verdict, the giving of erroneous instructions, and the admission of incompetent and improper evidence.

VICKERS, J. (after stating the facts as above).

Appellant insists that the court erred in refusing to direct a verdict because the evidence does not show that the derailment of the car was the result of its negligence. We do not find it necessary to decide whether the general statements of appellee and his son that the car in question was ‘coming fast’ can be regarded as such evidence of a negligent rate of speed as to warrant the court in submitting that question to the jury. The first requisite in establishing negligence is to show the existence of some duty and its violation. Negligence consists in the violation of a duty owing by the party inflicting the injury to the person injured. Back of every instance of negligence must be found a duty to the individual complaining, an observance of which would have avoided the injury. To state the principle in other language, in every case involving actionable negligence there must exist three essential elements: First, the existence of a duty on the part of the person charged to protect the complaining party from the injury received; second, a failure to perform that duty; and, third, an injury resulting from such failure. When these elements concur they unitedly constitute actionable negligence, and the absence of any of these elements renders the pleading bad or the evidence insufficient, as the case may be. 2 Cooley on Torts (3d Ed.) p. 1411, and cases cited. Duties may be general and owing to everybody, or particular and owing to a single person only, by reason of his peculiar position. A general duty becomes a personal and particular duty when some individual is placed in a position which gives him special occasion to insist upon its performance. That the burden of proving the existence of the duty, its breach, and the resulting injury is on the complaining party, is so well settled in the law of negligence that it requires no elaboration or citation of authority to sustain it. While this is true, there is a class of cases which are made out by showing the injury and connecting the defendant with it. When a thing which has caused an injury is shown to be under the management of the party charged with negligence, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from the want of proper care. This rule of law results from the maxim ‘Res ipsa loquitur.’ Many cases are to be found illustrating the application of this rule. In some of them it is said that the rule is an exception to the general rule that negligence will never be inferred, while in others it is not treated as an exception, but is treated as an evidentiary rule, under which the charge of negligence is regarded as proven, prima facie, by proof of facts showing that the thing which caused the injury was under the management and control of the defendant or his servants, and that the accident is such as in the ordinary course of things does not happen if those who have the management use proper care. Webb's Pollock on Torts, p. 550. The more accurate statement of the law is that negligence is never presumed, but that the circumstances surrounding a case where the maxim ‘Res ipsa loquitur’ applies amount to evidence from which the fact of negligence may be found. In the case before us, all of the elements of the accident were within the complete control of appellant, and the result is so far out of the usual course of things that there is no fair...

To continue reading

Request your trial
35 cases
  • Miller v. Terminal Railroad Assn., 37976.
    • United States
    • United States State Supreme Court of Missouri
    • July 1, 1942
    ...511; The President Wilson, 5 Fed. Supp. 684; Chicago City Ry. Co. v. Rood, 163 Ill. 477, 25 N.E. 238; Chicago Union Traction Co. v. Giese, 229 Ill. 260; Barnes v. Danville Street Ry. Co., 235 Ill. 566; Feldman v. Chicago Rys. Co., 289 Ill. 25; Ballenbach v. Bloomenthal, 341 Ill. 539; Lazer ......
  • Miller v. Terminal R. Ass'n of St. Louis
    • United States
    • United States State Supreme Court of Missouri
    • July 1, 1942
    ......511; The President Wilson, 5 F.Supp. 684; Chicago City Ry. Co. v. Rood, 163 Ill. 477, 25. N.E. 238; Chicago Union n Co. v. Giese, 229. Ill. 260; Barnes v. Danville Street Ry. Co., 235. Ill. 566; ......
  • Greinke v. Chicago City Ry. Co.
    • United States
    • Supreme Court of Illinois
    • June 18, 1908
    ......809;Chicago City Railway Co. v. Rood, 163 Ill. 477, 45 N. E. 238,54 Am. St. Rep. 478;Chicago Union Traction Co. v. Newmiller, 215 Ill. 383, 74 N. E. 410;Elgin, Aurora & Southern Traction Co. v. on, 217 Ill. 47, 75 N. E. 436;Chicago Union Traction Co. v. Giese, 229 Ill. 260, 82 N. E. 232. The declaration in this case alleges (1) that the appellee was a ......
  • Rogers v. Chicago & North Western Transp. Co., 77-301
    • United States
    • United States Appellate Court of Illinois
    • April 20, 1978
    ...... The next day, Gerstner reported the incident to his local union chairman, Robert Graham, brother of Norman Graham, and asked that he inform North Western car ...McNally, 227 Ill. 14, 17-18, 81 N.E. 23, 24-25 (1907) and in Chicago Union Tractor Co. v. Giese, 229 Ill. 260, 266, 82 N.E. 232, 234 (1907). However, in the often quoted statement of the rule ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT