Graham v. Hagmann

• Decision Date: 09 December 1915
• Docket Number: No. 10058.,10058.
• Citation: 270 Ill. 252,110 N.E. 337
• Parties: GRAHAM v. HAGMANN.
• Court: Illinois Supreme Court

270 Ill. 252

110 N.E. 337

GRAHAM

v.HAGMANN.

No. 10058.

Supreme Court of Illinois.

Oct. 27, 1915.

Rehearing Denied Dec. 9, 1915.

Error to Appellate Court, First District, on Appeal from Circuit Court, Cook County; Dean Franklin, Judge.

Action by Robert Graham against Charles E. Hagmann. Judgment for plaintiff was affirmed by the Appellate Court (189 Ill. App. 631), and defendant brings error. Affirmed.Felix J. Streyckmans and William J. Ammen, both of Chicago, for plaintiff in error.

Edward Maher and James L. Bynum, both of Chicago, for defendant in error.

CRAIG, J.

Defendant in error, Robert Graham, brought suit in the circuit court of Cook county against the plaintiff in error, Charles E. Hagmann, for personal injuries received as the result of a collision between the wagon in which he was riding and the automobile of plaintiff in error. The accident occurred about 11 o'clock on the night of June 24, 1911, at the intersection of Jackson boulevard and Homan avenue, in the city of Chicago. The negligence charged in the declaration is the driving of the automobile at a dangerous and high rate of speed, contrary to the provisions of the statute, and in failing to sound a whistle or horn so as to give defendant in error warning of the approach of the automobile. A plea of general issue was filed and the cause tried before a jury, resulting in a verdict and judgment in favor of the defendant in error for $2,000. On appeal to the Appellate Court for the First District the judgment of the trial court was affirmed. A writ of certiorari was allowed, and the cause is now in this court pursuant to the mandate of such writ.

The grounds urged for reversal of the judgment are that defendant in error was guilty of contributory negligence, the refusal to give certain instructions offered by plaintiff in error, and the refusal to grant plaintiff in error a new trial on account of newly discovered evidence.

It appears that on Saturday afternoon, June 24, 1911, defendant in error and his son, George Graham, were visiting at the house of a friend, Charles W. Heise, where they met Harry Knightly, Harry Williams, and Edward Hickey. The all remained at the home of Heise during the afternoon and evening and until about 10:30 o'clock that night, when they started for home in an open furniture delivery wagon owned by Knightly. Hickey was driving,with Knightly and Williams sitting with him on the driver's seat. Defendant in error and his son, George, were sitting on a bale of hay in the bottom of the wagon. The parties proceeded on their way home driving north until they reached the intersection of Homan avenue and Jackson boulevard, where the accident occurred in which defendant in error was injured. Homan avenue runs north and south and Jackson boulevard east and west through the city. The accident occurred at the northeast corner of the intersection of these two streets. Another street, Colorado avenue, runs diagonally northeast and southwest across these streets, intersecting Jackson boulevard at a point about 150 feet east of Homan avenue, leaving a triangular open space, bounded on the north by Jackson boulevard, on the west by Homan avenue and on the southeast by Colorado avenue, which space is spoken of as the park. Hickey and the others started to cross Jackson boulevard, looked to the west but not to the east, and did not see or hear the automobile until immediately before the accident happened. The driver, and those on the seat with him, watched the automobile approaching as they proceeded across Jackson boulevard, and when they saw it had crossed Colorado avenue the driver whipped up the horse but did not succeed in getting across the street before the collision occurred. The evidence on the part of the defendant in error tended to show that the automobile was being driven at a reckless and high rate of speed, that no warning was given of its approach, and that the wagon was run into by the automobile and upset while the occupants were using all due care and were endeavoring to get out of its way. The evidence on the part of the plaintiff in error tended to show that the occupants of the wagon were more or less under the influence of liquor; that the automobile was not being driven at a high rate of speed or in a reckless manner; and that it was brought to a complete stop before the accident occurred, which resulted from the wagon running into the automobile and the hind wheel of the wagon catching on the fender and bumper of the automobile and upsetting the wagon. As a result of the collision the wagon was completely overturned and its occupants thrown out, Williams being thrown under the horse and defendant in error falling on his face on the pavement, quite seriously, if not permanently, injuring him. Three spokes in the right hind wheel of the wagon were broken out and the rear axle was broken, and the automobile was so badly damaged that it could not be operated until it had been taken to a garage and repairs made.

[1] With this conflict in the evidence, the questions as to the manner in which the accident occurred, of the plaintiff in error's negligence, and the defendant in error's freedom from contributory negligence, were all questions of fact for the jury (Winn v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 239 Ill. 132, 87 N. E. 954), and, where the questions have been submitted to them on conflicting evidence and their verdict has been approved by the trial and Appellate Courts, this court can only examine the record to ascertain if the law has been properly applied by those courts to the facts before them (Reiter v. Standard Scale Co., 237 Ill. 374, 86 N. E. 745).

Plaintiff in error contends defendant in error was guilty of contributory negligence in two respects: First, in sitting with his back to the driver and in not looking in every direction before attempting to cross Jackson boulevard; and, second, in riding in a wagon without a light affixed to its left side showing a white light visible at least 200 feet in the direction toward which the wagon was traveling, and a red light visible at least 200 feet in the reverse direction, as required by an ordinance of the city of Chicago introduced in evidence.

[4] Plaintiff in error's first contention is based upon a misapprehension of the law on this subject. There is no imperativeduty resting upon pedestrians or upon travelers in a horse-drawn vehicle on public highways to keep a continuous lookout for automobiles, under penalty that if they fail to do so and are injured contributory negligence will be conclusively imputed to them. Millsaps v. Brogdon, 97 Ark. 469, 134 S. W. 632,32 L. R. A. (N. S.) 1177. The mere fact that automobiles are run by motor power and may be operated at a dangerous and high on the speed gives them no superior rights on the highway over other vehicles, any more so than would the fact that one is driving a race horse give such driver superior rights on the highway over his less fortunate neighbor who is pursuing his journey behind a slower horse. Highways are established and maintained at public expense for the mutual benefit of all, and all persons have a right to use them, subject only to the duty which the law imposes upon them that they shall at all times exercise ordinary care and caution for their own safety and also for the safety of all others who are traveling thereon in the exercise of their lawful rights. Baker v. Close, 204 N. Y. 92, 97 N. E. 501,38 L. R. A. (N. S.) 487;Christy v. Elliott, 216 Ill. 31, 74 N. E. 1035,1 L. R. A. (N. S.) 215, 108 Am. St. Rep. 196,3 Ann. Cas. 487. The degree of care and caution to be used in each case depends upon the character of the vehicle used and the locality and surroundings in which it is being used. The more dangerous the character of the vehicle and the greater its liability to do injury to others, the higher is the degree of care and caution to be exercised by the person charged with the duty of its operation. Christy v. Elliott, supra; Simeone v. Lindsay, 6 Pennewill (Del.) 224, 65 Atl. 778;Minor v. Stevens, 65 Wash. 423, 118 Pac. 313,42 L. R. A. (N. S.) 1178. The duty resting upon the driver of an ordinary horse-drawn vehicle to be watchful for the approach of automobiles to prevent injury from them is no greater than the duty resting upon the driver of automobiles to be watchful for travelers in other vehicles in order to prevent injuring them. The rights and duties of each in the premises are reciprocal. Christy v. Elliott, supra; Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224,3 L. R. A. (N. S.) 345,4 Ann. Cas. 396;Towle v. Morse, 103 Me. 250, 68 Atl. 1044;Fletcher v. Dixon, 107 Md. 420, 68 Atl. 875;Burvant v. Wolfe, 126 La. 787, 52 South. 1025,29 L. R. A. (N. S.) 677. Cases involving the conduct of a person about to cross a railroad track at a grade crossing are not in point. Hennessey v. Taylor, supra; Eaton v....