Grifenhan v. Chicago Rys. Co., 13974.

• Decision Date: 08 December 1921
• Docket Number: No. 13974.,13974.
• Citation: 132 N.E. 790,299 Ill. 590
• Parties: GRIFENHAN v. CHICAGO RYS. CO.
• Court: Illinois Supreme Court

299 Ill. 590

132 N.E. 790

GRIFENHAN

v.CHICAGO RYS. CO.

No. 13974.

Supreme Court of Illinois.

Oct. 22, 1921.

Rehearing Denied Dec. 8, 1921.

Error to First Branch, Appellate Court, First District, on Appeal from Superior Court, Cook County; Oscar Hebel, Judge.

Action by Mary Grifenhan against the Chicago Railways Company. From a judgment affirming a judgment for plaintiff, 220 Ill. App. 649, defendant brings certiorari.

Reversed and remanded.

Farmer, J., dissenting.

Charles Le Roy Brown, of Chicago (John R. Guilliams and George E. Gorman, both of Chicago, of counsel), for plaintiff in error.

C. Helmer Johnson, of Chicago (John T. Murray, of Chicago, of counsel), for defendant in error.

THOMPSON, J.

This cause is brought to this court by writ of certiorari to review a judgment of the Appellate Court affirming a judgment of the superior court of Cook county for $5,000 recovered by plaintiff, defendant in error here, against defendant, plaintiff in error here, for injuries growing out of an accident occurring on Crawford avenue, in the city of Chicago.

Crawford avenue is a north and south street. Two street car tracks are laid in the middle of the street. The space occupied by the tracks is paved with granite blocks, and the roadway on each side of the tracks is paved with brick. The space between the east rail of the north-bound track and the east curb of the paved roadway is 15 feet in width. A block north of Wabansia avenue Crawford avenue passes under a railroad viaduct. The avenue is slightly depressed under the viaduct, and there is a gradual decline, about a block in length, toward the viaduct from each direction. The pavement was in fair condition, except that immediately underneath the viaduct it was badly worn, and there were several holes 6 to 8 inches in depth, which were filled with water at the time. The injuries for which plaintiff recovered her judgment grew out of a collision between a street railway car of defendant and a Ford automobile in which she was a passenger. The car was of the pay-as-you-enter type and was about 50 feet long. It was carrying a heavy load of passengers and many of them were riding on the front platform. The automobile was carrying six adults-two men on the front seat and a man and three women on the back seat. Both were traveling north on Crawford avenue at the time of the accident. The versions of how the accident occurred are so different that it will be necessary to set each out separately.

The automobile was the property of H. B. Parrott and he was driving it at the time of the accident. The plaintiff's version of the accident is supported by her own testimony and that of Edward Grifenhan, her husband, Mrs. Chapman, her sister, and Mr. and Mrs. Parrott, all occupants of the automobile. All three of the women who testified were injured in the accident and all were rendered unconscious at the time. Parrott was somewhat injured and his automobile was badly damaged. Plaintiff and her husband lived just west of Crawford avenue, on Potomac avenue, an east and west street crossing Crawford avenue six or eight blocks south of the point of the accident. The six people entered Parrott's car at plaintiff's home and drove east on Potomac avenue to Crawford avenue and then north on the east side of Crawford avenue. In a few blocks the automobile overtook a north-bound street car, which stopped at cross-streets to receive and discharge passengers, and the automobile was stopped a short distance behind the car. At Wabansia avenue the automobile passed ahead of the street car and continued to move north in the roadway east of the car track. The automobile was traveling just outside the east rail of the north-bound track, but was within the course of the overhang of the street car. It continued in this course down the incline north of Wabansia avenue, under the viaduct and up the incline north of the viaduct. Just before the automobile reached the top of this incline the street car overtook it and collided with it from the rear with such force as to damage the automobile and injure the occupants.

Defendant's version of the accident differs materially from plaintiff's version. Its account of the occurrence was given by the motorman, conductor, and five passengers on the car in question. Defendant's version is that the street car which came in contact with the automobile was proceeding north under the viaduct with no automobile in front of the car on the track or on the roadway outside the track; that when the street car had climbed up the north incline to a point near its top the automobile raced past the street car and was proceeding northward just outside the car tracks and parallel and close to the east line of the street car; that when the automobile passed over the holes in the pavement under the viaduct it was greatly shaken and seemed in danger of sliding into the car; that when the rear of the automobile was 5 or 10 feet north of the front end of the street car the automobile skidded and zigzagged and tipped over toward the street car so that the street car collided with the top of the automobile; and that the automobile continued to tip and finally fell over on its side. One passenger seated on the east side of the street car stated that he saw the automobile dash by the street car at about 25 miles an hour an instant before he heard the crash.

The two versions are in...