Devine v. Pfaelzer

• Court: Illinois Supreme Court
• Writing for the Court: CARTWRIGHT
• Citation: Devine v. Pfaelzer, 277 Ill. 255, 115 N.E. 126 (Ill. 1917)
• Decision Date: 21 February 1917
• Docket Number: No. 10649.,10649.
• Parties: DEVINE v. PFAELZER.

277 Ill. 255

115 N.E. 126

DEVINE

v.PFAELZER.

No. 10649.

Supreme Court of Illinois.

Feb. 21, 1917.

Error to Second Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; M. L. McKinley, Judge.

Action by John F. Devine, administrator, against Eli Pfaelzer. Judgment for plaintiff was reversed by the Appellate Court (195 Ill. App. 221), and plaintiff brings error. Affirmed.

Farmer and Carter, JJ., dissenting.

James C. McShane, of Chicago, for plaintiff in error.

John A. Bloomingston, of Chicago, for defendant in error.

CARTWRIGHT, J.

John F. Devine, plaintiff in error, administrator of the estate of Philip Fitzpatrick, deceased, brought suit in the superior court of Cook county against Eli Pfaelzer, defendant in error, and the Eli Pfaelzer Packing Company, to recover damages on account of the death of Fitzpatrick, alleged to have been caused by the wrongful act of the defendants. The suit was dismissed as to the Eli Pfaelzer Packing Company, and after a trial, at which the jury disagreed, additional counts against Eli Pfaelzer alone were filed, and the cause was tried on the issue formed by a plea of not guilty. There was a verdict for the plaintiff for $7,500, and upon the plaintiff remitting $3,000 the defendant's motion for a new trial was overruled and judgment was entered for $4,500. An appeal was prosecuted to the Appellate Court for the First District, and that court reversed the judgment for error of the trial court in refusing to direct a verdict for the defendant, and remanded the cause for another trial. On motion of the plaintiff, and his admission of record that he would be unable to prove on any future trial any other or additional facts or circumstances showing or tending to show that Fitzpatrick was in the exercise of ordinary care for his own safety, the court amended the judgment by striking out the order remanding the cause. A writ of certiorari was granted by this court for a review of the judgment of the Appellate Court.

The charge of the declaration was that the defendant, Eli Pfaelzer, left his horse and buggy standing upon a public highway in Chicago without securely fastening the horse, and in consequence thereof the horse ran away in a public street, and knocked down Philip Fitzpatrick, and ran over him, causing the injuries which resulted in his death. At the trial there was no dispute as to the manner in which the horse was fastened. The defendant left the horse hitched to a light top buggy on the west side of Calumet avenue, a north and south street, facing south towards Forty-Seventh street, which runs east and west, and the horse was fastened by a leather strap an inch and a quarter wide, comparatively new, buckled to the horse's bit and attached to a 25-pound weight. The defendant went around the corner upon Forty-Seventh street to the Calumet Market, and in his absence some children were playing ‘horse’ on the sidewalk, and one of them was drawing a box with wheels on it, in which a child was riding. The child in the box clucked in the usual manner for starting a horse, and the horse started up, dragging the weight, turned the corner into Forty-Seventh street, lost the weight and the strap, or part of it, and ran away. While there was no dispute as to the manner in which the horse was fastened it was a controverted question of fact whether the method was reasonably secure, and the Appellate Court having made no finding of fact different from the trial court, the question of the defendant's negligence was finally determined by the Appellate Court. The reversal was for error of law, and it was the duty of the Appellate Court to remand the cause if upon another trial the error could be obviated. It was admitted of record that, if there was such error, it could not be obviated by additional evidence, and accordingly the motion to amend by striking out the remanding order was allowed.

There was no controversy at the trial as to what occurred at the time of the accident, the condition of the street where it occurred, or any other matter of fact. The horse, after turning into Forty-Seventh street, ran east several blocks on that street, and then turned north in St. Lawrence avenue. The accident occurred in the first block between Forty-Seventh street and Forty-Sixth street, the next street north running east and west. St. Lawrence avenue at that place was a residence street, built up with apartment houses on both side. Forty-Sixth place, 35 feet wide, runs west from St. Lawrence avenue midway between Forty-Seventh and Forty-Sixth streets. There was an apartment building on the north side of Forty-Sixth place extending north to an alley, and Fitzpatrick was janitor of that building. It was between 7 and 7:30 o'clock in the evening of August 8, 1908, and Fitzpatrick had been showing a man and his wife around the apartment building and was standing with them in front of the building. The other man and his wife were never afterward found by either of the parties, so far as appears. When these people saw the horse turn into St. Lawrence avenue, running toward them, Fitzpatrick and the other man ran out into the street when the horse was about 200 feet away. The other man was on the east side of the roadway, about 8 or 10 feet east and a few feet south of Fitzpatrick. As the horse passed the other man he apparently grabbed for its head, but the horse shied away from him to the northwest, knocked Fitzpatrick down, and ran over him, inflicting injuries so he died the following day.

The question presented to the trial court and Appellate Court was whether Fitzpatrick was in the exercise of ordinary care for his own safety, and ordinarily that question is one of fact for a jury; but when there is no evidence tending to show that...