Cicero & P. St. Ry. Co. v. Meixner

• Decision Date: 11 October 1895
• Court: Illinois Supreme Court
• Parties: CICERO & P. ST. RY. CO. v. MEIXNER.

160 Ill. 320

43 N.E. 823

CICERO & P. ST. RY. CO.

v.MEIXNER.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Appeal from appellate court, First district.

Action by Frank Meixner against the Cicero & Proviso Street-Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action on the case by appellee against appellant to recover damages for personal injuries received by him while attempting to board an electric street car. A jury in the trial court returned a verdict of $8,000 for plaintiff, on which judgment was rendered, and on appeal to the appellate court it was affirmed, 55 Ill. App. 288. The case comes to this court on an appeal from the judgment of the latter court.

J. A. Post, W. H. Barnum, and J. B. Brady, for appellant.

Brandt & Hoffmann, for appellee.

PHILLIPS, J.

One of the errors assigned for the reversal of this judgment is the refusal of the trial court to instruct the jury to find for the defendant, at the close of the plaintiff's evidence, and the refusal of the court to give a like instruction that, as a matter of law, the plaintiff had failed to make out his case, which was asked at the close of the argument. It is urged that the evidence of plaintiff did not warrant the jury in finding that the injury of plaintiff was the result of defendant's negligence, as charged in the declaration, and also that the evidence of plaintiff establishes that he was not at the time of his injury in the exercise of reasonable care and caution. Both of these matters are ordinarily questions of fact, to be determined in the trial and appellate court. As this court has frequently held, it is not our province to determine or pass upon such questions, further than to ascertain whether or not there was, at the close of plaintiff's case, evidence tending to prove the facts alleged in the declaration, and whether, at the close of all the testimony, when the motion to instruct for plaintiff was refused, the evidence, with all the inferences which the jury can justifiably draw from it, was insufficient to support a verdict for plaintiff, and that, if one was returned, it must be set aside. Railway Co. v. Richards, 152 Ill. 59, 38 N. E. 773;Coal Co. v. Holmquist, 152 Ill. 581, 38 N. E. 946;Car Co. v. Laack, 143 Ill. 242, 32 N. E. 285;Purdy v. Hall, 134 Ill. 298, 25 N. E. 645;Railway Co. v. Dunleavy, 129 Ill. 132, 22 N. E. 15;Bartelott v. Bank, 119 Ill. 259, 9 N. E. 898;Simmons v. Railroad Co., 110 Ill. 340.

Two elements alleged in the declaration, and necessary to be established by plaintiff before he could recover, were negligence of the defendant, as charged, and that the plaintiff was in the exercise of due care and caution for his own satety. It is not the province of this court to say whether these facts are proven. The evidence before the trial court and jury tended to show that plaintiff, on August 10, 1891, was on Madison street, in Chicago, about two blocks east of Desplaines avenue. He was walking fast on the north side of Madison street, intending to board an eastbound car on appellant's line. When a car approached, and was distant 150 or 200 feet, plaintiff, still being on the sidewalk on the north side of the street, signaled to the motorman, by throwing up his hand. He then proceeded diagonally to the middle of the street, and continued walking eastwardly, in the space between the two street-car tracks. The next street crossing east of this was Thomas street. He continued between the two tracks some 25 feet east of this crossing, when the car overtook him. Appellee contends that, before the car reached him, he had seen the motorman turn the brake, so that, when he attempted to get on, the car had slackened down to a speed of about four or five miles an hour. He was still on the left-hand or the north side of the track, and desired to get on the front platform. As the car went by, he caught the hand rails on each side of the front platform, when he says the speed of the car was suddenly accelerated, and he lost his hold, was dragged some 40 feet or more, and thrown under the wheels, and his left hand was crushed off. The material facts of appellee's testimony, as above set forth, were corroborated by two spectators who witnessed the occurrence,-one from the street, and the other in an adjoining yard, not far distant. Many of these facts were contradicted by the motorman and four passengers on the front platform, who testified that the car was running at a speed of seven or eight miles an hour when it reached appellee, and that the speed had not been decreased, for the reason that no signal was seen, and that the speed was not accelerated, but, on the contrary, the current was turned off, and the brake applied, as soon as appellee attempted to get on. It was contended and testified to by these witnesses that appellee had his back turned to the car while walking, and, as the car approached and overtook him, he attempted to catch it with both hands; that the motorman at once attempted to stop the car, and did so within a space of 35 or 40 feet. Some passengers in the car also testified that there was no decrease in speed until after the accident occurred. In the discussion of the question as to whether the court erred in refusing to instruct the jury to find for defendant, only the facts as presented and shown by appellee's evidence will be considered. The serious results of the injury to appellee are not disputed. He was a cabinet maker, and his skill as such depended on the use of both his hands.

We have examined this record with the utmost care, to ascertain if this judgment is sustained by the record. Negligence is ordinarily a question of fact for the jury. In Railway Co. v. Brown, 152 Ill. 484, 39 N. E. 273, this court has said: ‘Negligence is ordinarily a question of fact. Where the evidence on material facts is conflicting, or where, on any disputed facts, fair-minded men of ordinary intelligence may differ as to the inferences to be drawn, or where, on even a conceded state of facts, a different conclusion would reasonably be reached by different minds in all such cases, negligence is a question of fact. With all the facts considered, if there is a reasonable chance of conclusions differing thereon, then it is a question for a jury. Negligence may become a question of law where, from the facts admitted or conclusively proved, there is no reasonable chance of different reasonable minds reaching different conclusions.’ To hold that the trial court should have given the general instruction as asked, this court must hold that it was not a question of fact as to whether or not appellee was guilty of negligence contributing to the injury, but that it was a question of law, and was negligence per se for the plaintiff to attempt to board the car in question, running at the rate of speed as shown. If it was a question of fact, then it was properly submitted by the trial court to the jury. This court has held in a number of cases that it is negligence for a passenger to get off a moving train of which the motive power is steam, while the cars are in motion. Railroad Co. v. Lutz, 84 Ill. 598;Railway Co. v. Stratton, 78 Ill. 88; Railroad Co. v. Chambers, 71 Ill. 519;Railroad Co. v. Slatton, 54 Ill. 138; Railroad Co. v. Randolph, 53 Ill. 510. In Railway Co. v. Scates, 90 Ill. 586, this court said: ‘If it is to be regarded dangerous for a passenger to get off a train of cars in motion, it is likewise dangerous to get on the train when in motion. If an person is guilty of such negligence when getting off a train of cars in motion as will preclude a recovery for the injury received, upon the same principle and for the same reason a person injured in getting on a train in motion, and in consequence thereof, should be regarded guilty of such negligence as will prevent a recovery.’ The courts of other states have adopted the same rule, that it is negligence for a passenger to alight from a moving train of cars, the motive power of which is steam. The rule as applicable to steam railways is relaxed when applied to horse cars or street railways. Railroad Co. v. Buck, 96 Ind. 346;Stoner v. Pennsylvania Co., 98 Ind. 384. Beach on Contributory Negligence (section 90) says: ‘It is well settled that it is not contributory negligence per se for one to alight from or to board a moving street car, and here, again, we find the severity of the rule as applicable to steam railways essentially relaxed.’ Booth on Street-Railway Law (section 336) lays down the same rule in the following language: ‘Although the act of boarding a car while in motion is...