Ebsery v. Chicago City Ry. Co.

• Decision Date: 19 January 1897
• Citation: 164 Ill. 518,45 N.E. 1017
• Parties: EBSERY v. CHICAGO CITY RY. CO.
• Court: Illinois Supreme Court

164 Ill. 518

45 N.E. 1017

EBSERY

v.CHICAGO CITY RY. CO.

Supreme Court of Illinois.

Jan. 19, 1897.

Appeal from appellate court, First district.

Action by Christopher Ebsery against the Chicago City Railway Company. From a judgment of the appellate court (61 Ill. App. 265) affirming a judgment for defendant, plaintiff appeals. Affirmed.D. C. Kelleher, for appellant.

W. J. Hynes and H. H. Martin, for appellee.

This is an action brought by appellant against the appellee company to recover damages for a personal injury. The declaration contains two counts,-an original count and an additional count; but the allegations in the two counts are substantially the same, so far as the point involved in this controversy is concerned. The declaration alleges that on the 10th day of November, 1892, the appellee was operating a street-railway and cable-car system, and grip cars with trailers, in Chicago, on State street, and that south of Congress street on State street appellant became a passenger upon a grip car, and trailers attached thereto, upon defendant's road; that, ‘when said car was stopped and was not moving,’ appellant ‘alighted upon said grip car, and with all due care and diligence was seeking a seat’; that ‘while plaintiff was seeking a seat, and while said car was stationary and not moving,’ a team of horses and a wagon collided with appellant, and threw him from the grip car to the ground; that appellee, through its agents and servants, had full knowledge of the fact that appellant had been knocked from said grip car, and was then and there upon the ground and by the side of said grip car, endeavoring to protect himself against being injured and against being run over by said grip car or trailers; that it was the duty of the appellee to stop the said grip car, and trailing cars attached thereto, a reasonable time to enable said plaintiff to arise from the ground in safety, but that the said appellee, having notice through its agents and servants of appellant's situation, by its said servants negligently and carelessly caused the said grip car, and trailers attached thereto, to be suddenly and violently started and moved onward and southward, and thereby the plaintiff was run over by the said grip car, and trailers attached thereto, and one of his hands was run over and crushed and maimed; and that, to save appellant's life, it was necessary to amputate some of the fingers of his hand, and the same were amputated. The defendant filed a plea of general issue. The cause was tried before a jury, who returned the following verdict: ‘We, the jury, find the defendant guilty, and assess the plaintiff's damages at the sum of $1,200.’ The jury also made the following special findings, in answer to the following questions submitted to them, to wit: ‘First. Did the driver of the defendant's car know that the plaintiff was lying upon the ground at the time he started up his car? A. No. Second. At the time the plaintiff fell, was the grip car in motion? A. Yes.’

The bill of exceptions does not set forth any of the evidence in the cause. The bill of exceptions only shows the general verdict and the special findings above set forth, and that the defendant moved for a new trial, but afterwards withdrew its motion for a new trial, and moved the court for judgment for defendant on the special findings rendered in said cause; and that said motion was sustained, and the judgment was entered in said cause upon the special findings in favor of the defendant and against the plaintiff, to which judgment and ruling of the court the plaintiff then and there duly excepted. An appeal was taken from the judgment so rendered in favor of the defendant to the appellate court. The appellate court affirmed the judgment of the circuit court, and the present appeal is prosecuted from such judgment of affirmance.

MAGRUDER, C. J. (after stating the facts).

The main assignment of error is that the court erred in not entering judgment for plaintiff upon the general verdict, and in entering judgment for the defendant upon the special findings.

The only question in the case is whether the court erred in not entering up judgment in favor of the appellant upon the general verdict, and in entering judgment for the appellee upon the special findings. In order to determine whether the court erred in the ruling made and in the judgment entered by it, it will be necessary to determine whether the special findings of fact made by the jury were inconsistent with the general verdict. The first section of the statute upon this subject provides that, in any civil case in which the jury rendered a general verdict, they may be required ‘to find specially upon any material question or questions of fact which shall be stated to them in writing.’ The third section is as follows: ‘When the special finding of fact is inconsistent with the general verdict the former shall control the latter, and the court may render judgment accordingly.’ Railroad Co. v. Dunleavy, 129 Ill. 132, 22 N. E. 15. The questions which may be submitted to the jury for such special findings are not questions which relate to mere evidentiary facts, but questions which relate to the ultimate facts upon which the rights of the parties directly depend. A probative fact, from which the ultimate fact necessarily results, would be material. The inconsistency between the special finding of fact and the general verdict, as contemplated by the statute, ‘can arise only where the fact found is an ultimate fact, or one from which the existence or nonexistence of such ultimate fact necessarily...