Greinke v. Chicago City Ry. Co.

• Decision Date: 18 June 1908
• Citation: 85 N.E. 327,234 Ill. 564
• Parties: GREINKE v. CHICAGO CITY RY. CO.
• Court: Illinois Supreme Court

234 Ill. 564

85 N.E. 327

GREINKE

v.CHICAGO CITY RY. CO.

Supreme Court of Illinois.

June 18, 1908.

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; James A. Creighton, Judge.

Action by Lillian Greinke, by James L. Bynum, her next friend, against the Chicago City Railway Company. From a judgment for plaintiff, affirmed by the Appellate Court, defendant appelas. Affirmed.C. Le Roy Brown, for appellant.

James L. Bynum (Oliver R. Barrett and Edwin Hedrick, of counsel), for appellee.

HAND J.

This was an action on the case commenced in the superior court of Cook county by the appellee, a minor, by her next friend, to recover damages alleged to have been sustained by her on August 6, 1904, in consequence of the negligence of the appellant while she was a passenger upon one of its street cars in the city of Chicago.

The declaration contained one count, which was, in part, as follows: ‘For that whereas, on and before, to wit, the 6th day of August, A. D. 1904, at the city of Chicago, county of Cook, and state of Illinois, the defendant was in the possession of and using a certain line of street railway, commonly known as the South Halsted street line, of said defendant, running along, upon, and over Halsted street, Clark street, and divers other streets in the said city of Chicago, together with certain cars thereunto belonging and used for the conveyance of passengers for a certain reward to the defendant in that behalf, and operated by means of electricity. And the plaintiff avers that at the time aforesaid she was a passenger on one of the said cars of the said defendant, which said car was then and there being run in a southern direction along, upon, and over Clark street, at or near the intersection of Clark street and Fifteenth street. And the plaintiff further avers that it then and there became and was the duty of the said defendant to have used the highest degree of care to safely carry the plaintiff, so being a passenger, as aforesaid, in and on said car aforesaid, along, upon, and over the route traveled by the same, yet the defendant did not regard its duty in that behalf, and did not use due and proper care that the plaintiff should be safely carried in and on said car aforesaid, but neglected so to do, and by reason thereof afterwards, and while the plaintiff was a passenger on said car aforesaid and in the exercise of all due care and caution for her own safety, at or near a certain point in said city, county, and state, to wit, the intersection of Clark street and Fifteenth street, the said car aforesaid collided with a certain other car of the said defendant, by means and in consequence whereof the plaintiff was thrown with great force and violence upon and against a certain seat of said Halsted street car, and by means whereof the plaintiff's back and head were severely hurt, bruised, wounded, and injured, and she was injured in and about the abdomen and in and about the spinal cord, and her back, head, and hip were greatly contused, and she suffered severe nervous shock, and her mind became impaired and seriously injured, and was injured both internally and externally, and was otherwise greatly hurt, bruised, wounded, and injured, and became therefrom sick, sore, lame, and disordered and will be sick, sore, lame, and disordered the remainder of her life, during all of which time the plaintiff has suffered and will suffer great pain, and has been prevented from attending to and transacting her usual and ordinary affairs and duties, and has lost and will lose divers great gains and profits which she otherwise would have made and acquired, and also by means of the premises was then obliged to and became obligated to pay, lay out, and expend divers large sums of money, amounting to, to wit $500, in and about the endeavoring to be cured of her said hurts, bruises, wounds, injuries, and contusions received as aforesaid, to the damage of the plaintiff in the sum of $25,000, and therefore she brings her suit.’ The general issue was filed and a trial resulted in a verdict in favor of the appellee for the sum of $5,000, upon which the trial court, after overruling motions for a new trial and in arrest of judgment, rendered judgment, which judgment has been affirmed by the Appellate Court for the First District, and a further appeal has been prosecuted to this court.

The first contention made by appellant is that the declaration is not sufficient to support the judgment, and for that reason the court erred in overruling its motion in arrest of judgment. In McAndrews v. Chicago, Lake Shore & Eastern Railway Co., 222 Ill. 232, 236, 78 N. E. 603, 605, this court said in actions of this character ‘it is necessary to aver and prove three elements to make out a cause of action: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure of the defendant to perform that duty; and (3) an injury to the plaintiff resulting from such failure.’ And it is claimed by the appellant that the declaration filed in this case fails to allege facts which show the appellant owed appellee a duty, and a breach of such duty. It has been held by this court in a number of cases that where an accident happens to a passenger upon a street railway and the instrumentality which caused the accident was within the control of the railway company, and the passenger at the time of the accident was in the exercise of due care for his own safety, a cause of action is made out against the railway company; that is, that under those circumstances a prima facie case of negligence is made out against the railway company by showing the happening of the accident without showing the cause of the accident. West Chicago Street Railroad Co. v. Martin, 154 Ill. 523, 39 N. E. 140;New York, Chicago & St. Louis Railroad Co. v. Blumenthal, 160 Ill. 40, 43 N. E. 809;Chicago City Railway Co. v. Rood, 163 Ill. 477, 45 N. E. 238,54 Am. St. Rep. 478;Chicago Union Traction Co. v. Newmiller, 215 Ill. 383, 74 N. E. 410;Elgin, Aurora & Southern Traction Co. v. Wilson, 217 Ill. 47, 75 N. E. 436;Chicago Union Traction Co. v. Giese, 229 Ill. 260, 82 N. E. 232. The declaration in this case alleges (1) that the appellee was a passenger upon the appellant's railway, and that it was the duty of the appellant to safely carry her; (2) that the appellant failed to perform said duty, but permitted the car upon which the appellee was a passenger to collide with a certain other car of the appellant; and (3) that as a result of such collision the appellee was thrown with great force and violence against the seat of the car upon which she was a passenger, and was injured.

It is said, however, that the declaration does not aver facts which show the cause of the collision; that is, whether it occurred through the negligence of the appellant or of a stranger. The declaration does show that the collision took place between two cars of the appellant, upon one of which the appellee was a passenger, and all that was necessary for the appellee to do was to aver in her declaration a state of facts from which the law would raise a duty and aver its breach. This was done by averring that the appellee was a passenger upon one of the appellant's cars, and while she was such passenger the car upon which she was a passenger collided with another car of the appellant. West Chicago Street Railroad Co. v. Martin, supra. The appellee was not required to aver more facts than she was required to prove. The appellee may not have known the cause of the collision, and, in order to recover, was not bound to prove its cause. If she had averred its cause, she would have been required to prove the same, and might have failed in the proof and therefore have been defeated. She, therefore, under the law, had a right to stop with the averment and proof that she was a passenger upon one of appellant's cars, and that, while she was such a passenger, there was a collision between that car and another of appellant's cars, and then to have rested and relied upon the presumption of negligence arising therefrom as a matter of law, from which state of facts the burden of proof would have been thrown upon the appellant to show that it was not legally responsible for the collision in which the appellee was injured, if it could. In Elgin, Aurora & Southern Traction Co. v. Wilson, 217 Ill. 51, 75 N. E. 437, the court said: ‘The doctrine to be deduced from the above cases is that when one becomes a passenger on a car of a common carrier to be transported from one station on its line to another, and has paid a consideration therefor, the contract on the part of the carrier is to provide safe and sound cars, track, and necessary appliances to carry the passenger to his or her destination without injury. Where such a passenger is...