Feldman v. Chicago Rys. Co.

• Decision Date: 09 October 1919
• Docket Number: No. 12577.,12577.
• Parties: FELDMAN v. CHICAGO RYS. CO. et al.
• Court: Illinois Supreme Court

289 Ill. 25

124 N.E. 334

FELDMAN

v.CHICAGO RYS. CO. et al.

No. 12577.

Supreme Court of Illinois.

June 18, 1919.

Rehearing Denied Oct. 9, 1919.

Error to Appellate Court, First District, on Appeal from Circuit Court, Cook County; Richard S. Tuthill, Judge.

Action by William Feldman against the Chicago Railways Company and others. A judgment for plaintiff was reversed on appeal to the Appellate Court (212 Ill. App. 482), and plaintiff brings certiorari. Judgment of the Appellate Court reversed, and that of the trial court affirmed.

Dunn, C. J., and Cartwright, J., dissenting.Stein, Mayer & Stein, of Chicago (Sigmund W. David, of Chicago, of counsel), for plaintiff in error.

Harry P. Weber, George W. Miller, and Arthur J. Donovan, all of Chicago (John R. Guilliams and Franklin B. Hussey, both of Chicago, of counsel), for defendants in error.

STONE, J.

This cause comes to this court by certiorari to the Appellate Court for the First District, which court heard the cause on appeal and reversed the judgment of the circuit court of Cook county without remanding the cause.

The declaration filed consisted of four counts. The first count alleged that on February 26, 1915, the defendants, the Chicago Railways Company and others, were then and there the owners of and in possession, control, and management of divers lines of street railways in Chicago, and had in their possession, use, control, and management, for the purpose of operating the street railways, certain cars, machinery, power houses, tracks, switches, and other devices and instrumentalities, and were engaged in the business of common carriers of passengers for hire; that on said date, at a point on the line of the street railway owned by the defendants on Cicero avenue, to wit, at Harrison street, the plaintiff boarded one of the cars, paid his fare, and received a transfer coupon for transfer at the intersection of Cicero avenue and Twelfth street; that by reason of the premises it then and there became the duty of defendants to use the highest degree of care to carry safely plaintiff in their cars to his place of destination and there deliver him uninjured, and to that end and for that purpose to exercise and use the highest degree of care and caution in the control, operation, management, and state of repair of their cars, wheels, tracks, brakes, trucks, and switches, but therein the defendants wholly failed; that after the car in which plaintiff had been riding as a passenger arrived at the intersection of Twelfth street and Cicero avenue, and while he was proceeding as such passenger from said car to the proper place near the southwest corner of Twelfth street and Cicero avenue, there to wait for a car east-bound on Twelfth street to proceed on his journey, and while he was in the exercise of due care and caution for his own safety and without fault or negligence on his part, he was struck by, run into and over by the defendants, who then and there so carelessly, negligently, and improperly managed and operated said electric car that by reason thereof the car then and there left the track and struck and collided with and ran with great force and violence into and upon the plaintiff, whereby he was then and there thrown with great force and violence upon the ground, and was thereby greatly bruised, etc. Following the foregoing are allegations of injuries and damage.

The second count, after alleging ownership and control as in the first count and the duty of the defendants to exercise due care and caution in operating their cars so as not to collide with or run into pedestrians then and there rightfully upon the public highway, charges that, while the plaintiff was then and there standing upon and walking on Cicero avenue, going in a southeasterly direction at the intersection of said street with Twelfth street, in the public highway in Chicago, and while he was then and there in exercise of ordinary care and caution for his own safety, the defendants, through their servants in charge of one of said cars, so carelessly, negligently, and improperly managed and operated the electric car that by reason thereof said car then and there struck, collided with, and ran with great force and violence against and upon the plaintiff, etc.

The third count alleges ownership, etc., as set forth in the first count, and that it was the duty of the defendants to keep said car and all the parts thereof, including the wheels, trucks, brakes, and trolleys, in good and safe repair and condition, and to operate said car, and all parts thereof, with due skill, care, and caution for the safety of others, yet defendants carelessly and negligently failed to keep said car in repair, so that the same did not work properly, and the defendants then and there so negligently, carelessly, and improperly operated said car that by reason thereof and by reason of the premises the car collided with plaintiff.

The fourth count charges a defective track, and that the switches and tracks were out of repair, and that by reason of the negligence of defendants in not keeping the same in repair, and the careless operation of the car, the plaintiff was injured.

To the four counts of the declaration the defendants in error filed the general issue, to which a replication was filed by the plaintiff in error.

It is conceded and admitted by the plaintiff in error and the defendants in error that there is no contradiction in the testimony relative to the facts and circumstances surrounding the happening of the accident in question. On the morning of the accident the plaintiff in error took the south-bound car of defendants in error on Cicero avenue, entering the same at Harrison street. His journey was to Douglas boulevard and Turner avenue, which necessitated his transfer to another car of defendants in error going east, at the corner of Twelfth street and Cicero avenue. Upon boarding the car he paid his fare and called for and received from the conductor in charge a transfer which would entitle him to a continuous ride by transferring at Twelfth street and Cicero avenue to Douglas boulevard and Turner avenue. The car upon which he was riding came to a complete stop on the north side of Twelfth street. At this point the north and south bound tracks of defendants in error on Cicero avenue interesected with their east and west tracks on Twelfth street. A switch extended from the west side of the southbound track on Cicero avenue to the north side of the west-bound track on Twelfth street, connecting said tracks. The front trucks of the car passed south over the switch before the car stopped. The plaintiff in error thereupon left the car, alighting at the rear end thereof, and started toward the southwest corner of the intersection, which was the usual and customary place for passengers to wait for cars going east, one of which cars would take him to his journey's end. When he reached a point five or six feet west of the car and in the neighborhood of the north curb or crosswalk of Twelfth street the car from which he had alighted was started by the motorman, but instead of going south the rear end of the car suddenly swung around to the west, completely out of its course of travel, so that the end of the car almost touched the west curb of Cicero avenue, striking plaintiff in error and knocking him down. It is apparent from the evidence that after the front trucks had passed over the switch for some reason not found in the evidence the switch had changed its position so as to guide the rear trucks onto the switch in a southwesterly direction, thereby throwing the car around, as above described, to such an extent that at the time of the injury to the plaintiff in error the car was in a position extending almost east and west. The plaintiff in error was removed to a hospital, where an examination disclosed a fracture of the clavicle or collar bone into three parts, one part of which (a little triangular piece) was directed downward and entirely out of line of the fractured ends. After being operated upon it was found that the plaintiff in error had developed an enlargement of the artery extending from the heart into the region of the collar bone.

The jury returned a verdict for the plaintiff in error in the sum of $5,500. Motions for new trial and in arrest of judgment were overruled, and an appeal was prayed and perfected to the Appellate Court for the First District by the defendants in error. The Appellate Court held as a matter of law that the plaintiff in error at the time of the accident was not a passenger of the defendants in error; that when the plaintiff in error alighted from the Cicero avenue car upon which he had been traveling the relation of passenger and carrier ceased. That court also held that the doctrine of resipsa loquitur was not applicable under the pleadings in this case; that each count of the declaration alleged negligence in special and not in general terms; that the plaintiff in error had failed to support his cause of action with evidence of special negligence, as charged in the declaration; that the evidence in the record is not sufficient to support the third and fourth counts of the declaration. For those reasons the judgment was reversed, and the cause remanded by the Appellate Court. The plaintiff in error thereupon stated by affidavit that he had relied upon the doctrine of res ipsa loquitur and would be unable to produce further evidence of special negligence upon the second trial. Thereupon the Appellate Court, upon motion, changed its original judgment, reversed the case without remanding and gave judgment of nil capiat in favor of the defendants in error, from which judgment the cause is brought to this court on writ of certiorari.

It is contended by the plaintiff in error that the judgment of the trial court was correct and should have been affirmed; that the plaintiff in error was at the time of the accident a passenger of the defendants in error;...