Hackett v. Chicago City Ry. Co.

• Decision Date: 18 June 1908
• Citation: 85 N.E. 320,235 Ill. 116
• Parties: HACKETT v. CHICAGO CITY RY. CO.
• Court: Illinois Supreme Court

235 Ill. 116

85 N.E. 320

HACKETT

v.CHICAGO CITY RY. CO.

Supreme Court of Illinois.

June 18, 1908.

Appeal from Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; R. W. Wright, Judge.

Action by Myrtle Hackett, by Bertha Hackett, against the Chicago City Railway Company. From a judgment for plaintiff, defendant appealed to the Appellate Court, where the judgment was affirmed by a divided court, and defendant appeals. Reversed and remanded.

Cartwright, C. J., and Hand and Vickers, JJ., dissenting.James G. Condon and C. Le Roy Brown, for appellant.

H. J. Toner (Oliver R. Barrett and Ora E. Chapin, of counsel), for appellee.

This was an action on the case brought by Myrtle Hackett, a minor, by her next friend, in the superior court of Cook county, against the Chicago City Railway Company, the appellant, to recover damages for personal injuries sustained by the appellee. The declaration in three counts charged the reckless, careless, negligent, and improper operation by apellant of one of its street cars, whereby the car struck against appellee and injured her. The general issue was interposed.

Appellant operated a double-track electric street railway on Wallace street, in the city of Chicago. That street extends north and south and intersects Thirty-Third and Thirty-Fifth streets at right angles. Thirty-Third street is about 300 yards from, parallel to, and north of Thirty-Fifth street. About midway between the two streets an iron post had been erected on the west side of Wallace street to indicate a stopping place for the cars. No street intersects Wallace between Thirty-Third and Thirty-Fifth. The track farthest to the east in Wallace street was used by north-bound cars and the west track by cars running south. The east rail of the east track was 14 feet and 9 inches from the curb or west line of the sidewalk along the east side of the street. At the time of the accident appellee was between six and seven years of age. She lived with her parents at the southwest corner of Thirty-Third and Wallace streets, and attended the McClellan School, which was located at the southeast corner of Thirty-Fifth and Wallace streets. This school was attended by about 1,200 pupils. The injury occurred about noon on September 17, 1901, just after the pupils had been dismissed from school and were on the way to their homes. After leaving the school building, appellee walked north with a companion of about the same age on the walk on the east side of Wallace street, until she had reached a point about opposite the iron post, when she left her companion, stepped off the curb, and started in a northwesterly direction across the street. At this time a car was approaching from the south on the east track and one was approaching from the north on the west track, which passed the north-bound car at a point about opposite the iron post. Neither car stopped at that post. There was nothing to obscure appellee's view of either car, and she evidently saw the south-bound car approaching. After leaving the walk she continued in a northwesterly direction, looking back towards her companion on the sidewalk at least once until she was within a foot or two of the east rail, at a point 15 or 20 feet north of a point directly east of the iron post. Just as she was about to step on the traick, she was struck by the overhang of the northeast corner of the north-bound car and thrown to the pavement, causing a fracture of her skull, requiring a removal of a section of the bone. At the north side of Thirty-Fifth street the north-bound car had stopped to take on passengers, and at the time appellee left the sidewalk it was running between seven and eight miles an hour. The evidence tends to show that the motorman in charge of the car rang the gong after leaving Thirty-Fifth street, and that, when appellee left the sidewalk, he immediately threw off the current, applied the brake, and rang the bell. Before striking appellee the speed of the car was considerably reduced, and it was stopped shortly after passing the point where the accident occurred.

At the close of all the evidence the court denied the motion of appellant for a peremptory instruction. The trial resulted in a verdict for $4,000 in favor of appellee, and, after overruling the motions of appellant for a new trial and in arrest of judgment, the court entered judgment upon the verdict. From that judgment an appeal was prosecuted by appellant to the Appellate Court for the First District, where the cause was assigned to the branch court. There the judgment of the superior court was affirmed by a divided court, one of the justices dissenting, and from the judgment of that court this appeal is prosecuted

It is urged by appellant that (1) the verdict is against the manifest preponderance of the evidence; (2) the court should have directed a verdict for the defendant; and (3) the court erred in passing on instructions.

SCOTT, J. (after stating the facts as above).

In this case the justices of the Branch Appellate Court were divided in opinion, and one of them dissented from the judgment entered in that court. Appellant urges that the verdict of the jury was against the manifest preponderance of the evidence, and regards section 120 of the practice act of 1907 (Laws 1907, p. 468), as conferring upon this court power to determine the controverted questions of fact arising in this case in view of the division of the justices of the Appellate Court. Appellee contends upon the authority of Hecker v. Illinois Central Railroad Co., 231 Ill. 574, 83 N. E. 456, that the section in question is special legislation and unconstitutional in so far as it apparently confers that power, for the reason that the language relied upon by appellant does not give this court power to review the facts in every instance where the justices of the Appellate Court are divided in opinion.

Section 120 read as follows: ‘If any final determination of any cause or proceeding whatever except in chancery shall be made by the Appellate Court, as the result wholly or in part of the finding of the facts, concerning the matter in controversy, different from the finding of the court from which such cause or proceeding was brought by appeal or writ of error, it shall be the duty of such Appellate Court to recite in its final order, judgment or decree, the facts as found; and the judgment of the Appellate Court shall be final and conclusive as to all matters of fact in controversy in such cause or proceeding: Provided, in actions at law where the Appellate Court reverses the judgment of the trial court without awarding a trial de novo, as the result wholly or in part of finding the facts different from the finding of the trial court and in cases where the justices of the Appellate Court are divided in opinion on the law or facts, and the cause is taken by appeal or writ of error to the Supreme Court, then the provision that the judgment of the Appellate Court shall be final as to the facts, shall not apply, and both the facts and the law shall stand for review in the Supreme Court as in the Appellate Court.’

In Hecker v. Illinois Central Railroad Co., supra, we held the section unconstitutional in so far as it attempted to confer upon this court the power to review the facts in cases falling within the meaning of the language above italicized following the word ‘provided,’ and, if appellant's view of the statute be correct, it would now in legal effect read as though such italicized language was entirely stricken out. It will be observed that the part of the section preceding the proviso requires a finding of fact, which shall be incorporatedin the judgment of the Appellate Court, in all cases where any final determination of any cause or proceeding, except in chancery, shall be made by the Appellate Court as the result, wholly or in part, of finding the facts concerning the matter in controversy different from the finding of the trial court. That portion of the section only applies where the Appellate Court finds the facts to be different from the finding of the trial court, and where the final determination of the cause or proceeding in the Appellate Court is one that results, wholly or in part, from such different finding of facts. That portion of the section does not bear upon a case where the Appellate Court finds the facts to be as they were found by the trial court. The section, therefore, has no application to a case where the Appellate Court finds the facts to be as found by the trial court, unless the section is extended to a case of that character by the proviso. As to the effect to be given a proviso in construing a statute, we said in Gaither v. Wilson, 164 Ill. 544, 46 N. E. 58: ‘A proviso affects only the section to which it is added. Its office is generally to except something, or to qualify or restrain the generality of the section, or to exclude some possible ground of misinterpretation. It does not operate beyond the enacting clause, but as an exception of it or restraint upon it. United States v. Dickson, 15 Pet. (U. S.) 141, 10 L. Ed. 689; Minis v. United States, 15 Pet. (U. S.) 423, 10 L. Ed. 791;Boon v. Juliet, 1 Scam. 258;Spring v. Collector of Onley, 78 Ill. 101;City of Chicago v. Phoenix Ins. Co., 126 Ill. 276, 18 N. E. 668; 23 Am. & Eng. Ency. of Law, 435, and note.’ To this rule of construction, however, there is an exception, which is that, where it plainly appears from a consideration of the entire act that the provision considered was intended by the Legislature as an independent enactment, it may be so given effect without reference to the limitations of the preceding portions of the section to which it is apparently a proviso. In re Day, 181 Ill. 73, 54 N. E. 646, 5 L. R. A. 519; Sutherland on Stat. Const. § 223; 26 Am. & Eng. Ency. of Law (2d Ed.) 679. Appellant contends that the clause of the proviso upon which it relies falls within the exception to the...