Fellows-Kimbrough v. Chicago City Ry. Co.

• Citation: 111 N.E. 499,272 Ill. 71
• Decision Date: 16 February 1916
• Docket Number: No. 9994.,9994.
• Parties: FELLOWS-KIMBROUGH v. CHICAGO CITY RY. CO.
• Court: Illinois Supreme Court

272 Ill. 71

111 N.E. 499

FELLOWS-KIMBROUGH

v.CHICAGO CITY RY. CO.

No. 9994.

Supreme Court of Illinois.

Feb. 16, 1916.

Error to Appellate Court, First District, on Appeal from Superior Court, Cook County; C. A. MacDonald, Judge.

Action by Marie A. Fellows-Kimbrough against the Chicago City Railway Company. From a judgment of the Appellate Court (190 Ill. App. 17), affirming a judgment for plaintiff, defendant brings error. Reversed and remanded.

See, also, 166 Ill. App. 71.John E. Kehoe and Charles Le Roy Brown, both of Chicago (John R. Guilliams, of Chicago, of counsel), for plaintiff in error.

Harvey Wynekoop and Edward Maher, both of Chicago (Guerin & Barrett, of Chicago, of counsel), for defendant in error.

DUNCAN, J.

An action on the case for personal injuries alleged to have been sustained September 5, 1907, was brought by Marie A. Fellows-Kimbrough against the Chicago City Railway Company, plaintiff in error, in the superior court of Cook county. On the first trial, in February, 1909, defendant in error claimed that a malignant cancer was developing in her breast as a result of her injuries, and the jury awarded $7,000 as damages. The trial judge required a remittitur of $3,000 and entered judgment for $4,000. That judgment was reversed by the Appellate Court for the First District because of the improper conduct of one of the attorneys for defendant in error. On the second trial, in March, 1913, her physicians testified, in substance, that the lump in her breast, which they had in the first trial testified was in their opinion a cancer, was a fatty tumor about the size of a hen's egg, the removal of which, as shown by the evidence, was a simple matter that would not be followed with serious consequences. The only other ailment claimed by defendant in error on the second trial to be still enduring as a result of her injuries was a traumatic neurasthenia, which plaintiff in error insisted was the result of a series of troubles that she experienced as the result of three marriages and two divorces and two long spells of sickness and confinement in a hospital, during which time she underwent two severe surgical operations. On the second trial the jury returned a verdict for $3,750 damages, upon which the court entered judgment. The Appellate Court affirmed that judgment, and a writ of certiorari was granted by this court for the purpose of reviewing the judgment of the Appellate Court.

The injury to defendant in error happened at the crossing of Indiana avenue and Thirty-Fifth street, in Chicago, upon which streets plaintiff in error was operating street railways. The east-bound Thirty-Fifth street car, on which the defendant in error was a passenger, was a small, single-truck, open summer car of the old type. It stopped on the west side of Indiana avenue. After receiving and discharging passengers it started forward, and had almost cleared the east or north-bound track on Indiana avenue when a north-bound Indiana avenue car ran into its rear platform, knocking the small car off the track and leaving it pointing southeast and northwest. The Indiana avenue car was a modern pay-as-you-enter car, 48 feet long and weighing about 27 tons. The only injury to the cars in the collision was the breaking of the headlight on the large car and the knocking off of the rear fender and a slight springing of the axle of the small car. The evidence of defendant in error-a colored woman and physician in active practice and earning $200 per month by her profession-tends to show a very violent collision, and that she was thrown between the floor of the car and the seat in a ‘twisted up’ position, and received severe bruises on her leg and in her chest or breast, a fracture of one or two of her ribs, and other injuries, from which she suffered great pain, nervousness, weakening of the mental faculties, and from which injuries resulted the tumor and the traumatic neurasthenia aforesaid. Her evidence also tended to show that she was a strong, robust, lively, energetic woman of the age of 41 years and weighing 250 pounds when injured. The evidence of plaintiff in error tends to show that the collision was slight, and did little damage to the cars, and caused no injury to defendant in error or to any one on the Thirty-Fifth street car.

It was the invariable rule that the cars on both of said lines should always stop at the intersection of said streets before they went over the crossing. When the east-bound Thirty-Fifth street car started east from its position of stop on the west side of Indiana avenue the north-bound Indiana avenue car was about 100 feet south of Thirty-fifth street, and there was no signal or other indication to the employés in charge of the Thirty-Fifth street car that the Indiana avenue car could not or would not stop at the south crosswalk of Thirty-Fifth street, in accordance with the rule in that regard. At the time the north-bound Indiana avenue car was about 150 feet south of Thirty-Fifth street crossing the motorman on that car attempted to throw off the power by the controller and bring the car to a stop. He was unable to move the controller handle past a certain point on the dial of the controller box because one of the metal fingers on the inside of the controller box had in some unknown way become bent and locked and held the controller so that the power could not be cut off and the car stopped by the controller. The motorman made repeated attempts to stop the car with the controller and by applying the air, but found it impossible to do so. When in about 50 feet or less of the crossing of said streets the motorman for the first time thought of the canopy switch over his head, a contrivance by which he could, by pressing a button in easy reach of him, have shut off the power entirely and by applying the air have stopped his car within a distance of from 50 to 75 feet. The canopy switch was intended for use in stopping the car only in case of an emergency, when the car could not be stopped by the controller, and the only reason why the motorman did not use it sooner, as the Appellate Court has apparently found, was that he did not think of it sooner while trying to stop the car. The evidence further shows that the controller box and metal fingers had been inspected in the shop on the day of the injury to defendant in error and before the car left the shop, and that it had made several trips that day before the injury, and that there was no indication that there was anything wrong with the controller or metal fingers until the motorman undertook to use the controller for making the stop in question at said crossing.

[1] It is first argued by plaintiff in error that the trial court erred in permitting purely speculative evidence as to the future consequences of the tumor in the breast of defendant in error to be considered by the jury. The particular evidence in question appears in the cross-examination and redirect examination of defendant in error's witness, Dr. Mowery, which appears in the record as follows:

Q. ‘Doctor, if it was cancer at the time of this trial, four years ago, what would be its condition at the present time?’ A. ‘To all intents and purposes, if it broke through the basement member four years ago with cancer, this woman would have been dead. If it had been cancer four years ago, she would not necessarily have been dead three years ago, as those things are very slow, sometimes.’ Q. ‘Isn't it the universal opinion in such cases that it could not lie dormant for that length of time?’ A. ‘I think this case at the present time can lie dormant for a number of years and become a cancer.’ (Motion by defendant to strike out answer as to what it might become and as not being responsive; motion overruled, to which ruling defendant duly excepted.) Q. ‘Doctor,...