Christy v. Elliott

• Decision Date: 23 June 1905
• Citation: 74 N.E. 1035,216 Ill. 31
• Parties: CHRISTY v. ELLIOTT.
• Court: Illinois Supreme Court

216 Ill. 31

74 N.E. 1035

CHRISTY

v.ELLIOTT. ^*

Supreme Court of Illinois.

June 23, 1905.

Appeal from Circuit Court, Mercer County; F. D. Ramsay, Judge.

Action by Parker Elliott against George W. Christy. From a judgment in favor of plaintiff, defendant appeals. Affirmed.George Shumway and W. T. Church, for appellant.

William J. Graham and Henry E. Burgess, for appellee.

This is an action of trespass on the case, brought in the circuit court of Mercer county on June 30, 1904, by the appellee against the appellant to recover damages resulting to plaintiff from an injury inflicted upon him by being thrown from a wagon drawn by mules upon a public highway, by reason of said mules becoming frightened and turning over said wagon, because of the alleged negligence of appellant in running an automobile, in which he was riding, in violation of the statute of Illinois in regard to automobiles, and in driving and managing said automobile in a careless, negligent, and improper manner. The plea of the general issue was filed to the declaration, and the case was tried before the court and a jury. The jury returned a verdict in favor of appellee and against appellant for $1,250. Motion for new trial was made and overruled, and judgment rendered upon the verdict. The present appeal from the judgment so entered by the circuit court is prosecuted to this court upon the ground that the constitutionality or validity of the act hereinafter referred to, to regulate the speed of automobiles, etc., is involved in this case. The declaration consists of six counts. The first and third counts are based upon the statute prohibiting a greater rate of speed than 15 miles an hour. The second and fourth counts are based upon that provision of the statute which provides that automobiles should come to a full stop when ‘it shall appear’ that any horse or team approaching them in the highway is frightened. The fifth and sixth counts are based on the common-law grounds of negligence.

The material facts are substantially as follows: On Jund 23, 1904, appellee, in company with one William Parker, who was driving, and three old ladies, to wit, Mary Parker, the mother of William Parker, the driver, and James McMullen and Elizabeth McMullen, were driving south upon a highway leading into the village or town of New Windsor, which highway extended in a northerly and southerly direction on the line between Mercer and Henry counties. Appellee was riding on the front seat with Parker, the driver, and the three women were sitting on the back seat. The vehicle was an open spring wagon, and was drawn by a team of mules. Appellee and his companions were coming up over the brow of a hill about a mile and a half north of New Windsor, when they first saw the appellant coming north toward them in a seven horse power gasoline automobile, about 59 rods away From the point where appellee and his companions first saw appellant to the point where appellant was then approaching them, there was a level road to the south for over 200 rods. North of the place, where the accident happened, the view was unobstructed for half a mile, except that there was a small hill opposite what is called in the evidence the ‘Hoogner Place,’ where there was a depression about 25 rods long. In the automobile were appellant, with his son and daughter, and a friend of theirs, named Spivey. When the automobile came up to where the wagon was, the mules became unmanageable; the wheels of the spring wagon went into a ditch on the right or west side of the road; the mules veered sharply to the east and upset the wagon, throwing the occupants out, and ran away. Appellee's arm was broken by the fall, and it was claimed by him that one of his legs was injured. There is evidence tending to show that, as a result of the breakage of his arm, appellee had an enlarged joint and permanent deformity. When he first fell from the wagon, he was unconscious,and lay in the road an hour, while waiting for a physician, who had been sent for. For some 17 days he was confined to his bed, and for 2 1/2 months thereafter could not walk without a cane or chair. There is testimony, tending to show that his leg was so severely injured that he could not bear the weight of his body upon it. Although the physicians testify that they could detect no broken bone in the leg, they state that they detected enlarged glands in the groin, but whether this enlargement of the glands in the groin proceeded from the accident, or from some other cause, is a matter about which the witnesses differ. The testimony of the appellee tends to show that when Parker, the driver, saw the machine coming, he tried to urge his team forward and around the head of the ditch to the west, so that he could leave the beaten track and get out to the extreme west side of the highway, next to the hedge; that the team began to show signs of fright about as soon as they saw the automobile at the Wilcox place, about 59 rods away; that they began to jump and twist about as the driver tried to urge them on, and when the automobile was about six rods away they ‘flew back’ in their harness, and then lunged forward and to one side just as the machine came up to them, throwing the wheels of the vehicle into the ditch. On the other hand, the witnesses of appellant, who were the parties riding in the automobile, say that the team was standing still as the automobile passed them, and showed no signs of fright. After the accident, appellant did not lessen the speed of his automobile, but went on, without taking notice of the fact that the parties were thrown from the wagon, although Gertrude Christy, the daughter of appellant, who was in the automobile with him, says that she looked back, and ‘saw the people out of the rig. I did not say anything to any one about what I had seen. I did not tell my brother George, that the people were out of the rig.’

The first count of the declaration alleges that the appellant was negligently and willfully driving and running said automobile upon the highway in a northerly direction at a rate of speed greatly in excess of 15 miles an hour, contrary to the statutes in such cases made and provided. The second count of the declaration alleges that, while the appellant was approaching the vehicle in which the appellee was traveling, it then and there appeared to the appellant that the horses attached to the vehicle were about to become frightened by the approach of the automobile, and that it was the duty of the appellant, as was then and there provided by law, to cause the automobile so driven by the appellant to come to a full stop until the horses had passed it.

On May 13, 1903, the Legislature passed an act entitled ‘An act to regulate the speed of automobiles and other horseless conveyances upon the public streets, roads and highways of the state of Illinois.’ The first section of the act provides as follows: ‘That it shall be unlawful for any person or persons to drive, run, conduct or propel any automobile or any other conveyance of a similar type or kind used for the purpose of transporting or conveying passengers or freight, or any other purposes, whether said automobile or conveyance of such other vehicle is propelled by steam, gasoline or electricity or any other mechanical power, at a rate of speed in excess of fifteen miles per hour upon any road or highway in the state of Illinois ‘or any other rate of speed established by ordinance of any city or village of said state, upon any street within such city [or] village:’ provided, that nothing in this section contained shall prohibit or prevent the running of such automobiles, or vehicles at a greater rate of speed than fifteen miles per hour upon such streets within incorporated cities or villages, as may be set apart for use of such automobiles and other conveyances, and upon which said cities or villages may, by ordinance, permit a greater or require a less rate of speed than herein specified.' The second section of the act is as follows: ‘Whenever it shall appear that any horse driven or ridden by any person, upon any of said streets, roads or highways is about to become frightened by the approach of any such automobile or vehicle, it shall be the duty of the person driving or conducting such automobile or vehicles to cause the same to come to a full stop, until such horse or horses have passed.’ The third section of the act provides that ‘any person or persons violating the provision of the foregoing section one (1) or two (2) shall upon conviction, be sentenced to pay a fine of not less than twenty-five (25) dollars nor more than two hundred (200) dollars, and may be confined in the county jail not to exceed three (3) months, or both, in the discretion of the court.’ The fourth section of the act provides that ‘in any action brought to recover any damages, either to person or property caused by running such automobiles or vehicles at a greater rate of speed than designated in section one (1), the plaintiff or plaintiffs shall be deemed to have made out a prima facie case, by showing the fact of such injury, and that such person or persons driving such automobiles or vehicles was, at the time of the injury, running the same at a speed in excess of that mentioned in section one (1).’ Sess. Laws 1903, pp. 301, 302.

MAGRUDER, J. (after stating the facts).

1. It is strenuously insisted by the appellee that this court has no jurisdiction to entertain this cause, and that the appeal from the judgment of the circuit court should have been taken to the Appellate Court. The ground upon which the cause is brought by the appellant to this court is that the constitutionality of the act regulating the speed of automobiles, etc., set forth in the statement preceding this opinion, is involved in the cause. The appellee contends that inasmuchas the constitutionality of the act was not challenged or questioned by the appellant upon the trial below, nor until the...