Harper v. Owen H. Fay Livery Co.

• Decision Date: 07 October 1914
• Docket Number: No. 8925.,8925.
• Citation: 264 Ill. 459,106 N.E. 273
• Parties: HARPER v. OWEN H. FAY LIVERY CO.
• Court: Illinois Supreme Court

264 Ill. 459

106 N.E. 273

HARPER

v.OWEN H. FAY LIVERY CO.

No. 8925.

Supreme Court of Illinois.

June 16, 1914.

Rehearing Denied Oct. 7, 1914.

Error to Branch B, Appellate Court, First District, on Appeal from Superior Court, Cook County; Homer Abbott, Judge.

Action by Ella D. Harper, administratrix of Henry Harper, Jr., deceased, against the Owen H. Fay Livery Company and others. From a judgment of the Appellate Court (177 Ill. App. 138), affirming a judgment against the Owen H. Fay Livery Company and in favor of the other defendants, the Livery Company brings error. Affirmed.

William D. Munhall, of Chicago, for plaintiff in error.

William B. Jarvis, of Chicago, for defendant in error.

CRAIG, J.

The defendant in error, Ella D. Harper, as administratrix of the estate of Henry Harper, Jr., deceased, brought suit against the plaintiff in error, the Owen H. Fay LiveryCompany, and the receivers of certain railroad companies, to recover damages for the death of her intestate, said Henry Harper, Jr., caused, as alleged, by the neglect of said defendants and their servants. The declaration, among other things, charges that said Owen H. Fay Livery Company was in the business of conducting a livery stable and providing and letting for hire drivers, vehicles, and horses for such of the public as might engage the same of the said company, for the purpose of conveying persons to such places as they might wish to go; that on January 15, 1909, said livery company did let for hire a certain carriage and team of horses, together with the driver thereof, to drive and carry said Harper and others over the streets in said county of Cook to and from funeral services, and did, by means of said carriage and team and said driver, convey said Harper and others on and over Douglas boulevard and upon the crossing of the Chicago Terminal Transfer Railroad Company, and that the said livery company, acting by its said servants, so negligently and carelessly drove said team of horses and carriage that the said carriage collided with a train of the Chicago & Great Western Railway Company being operated on said track; that by such collision or striking the tongue of said carriage was broken, said team became frightened and uncontrollable, and ran along the right of way of said railroad company; that said Harper, while in the exercise of ordinary care and caution for his own safety, was put in danger, and having reasonable cause to believe, and believing, that he was in imminent peril, alighted or sprang from said carriage, and in so doing was struck by a car or some portion thereof, which resulted from his efforts to escape said danger, and thereby received injuries from which, on the 19th day of January, 1909, he died. The defendants, including plaintiff in error, pleaded the general issue. A trial was had by jury, which returned a verdict finding the defendant the Owen H. Fay Livery Company guilty and assessingplaintiff's damages at the sum of $6,500, and finding the other defendants not guilty. A motion for a new trial and in arrest of judgment was overruled, and judgment was entered on the verdict. The Owen H. Fay Livery Company prayed an appeal to the Appellate Court for the First District, which affirmed the judgment of the superior court, and the case has been brought to this court by certiorari.

At the close of the evidence plaintiff in error offered a peremptory instruction directing the jury to return a verdict in its favor, which the court refused. The principal error assigned is the holding of the Appellate Court that the defendant in error's intestate was a passenger for hire. The other errors assigned are for not reversing said case because of the refusal of the peremptory instruction, which was based on the ground that there was no evidence to show that said Harper was a passenger for hire, and other instructions drawn on the same theory, which were refused by the trial court.

It appears from the evidence that the carriage and team in which defendant in error's intestate was riding at the time of his death was owned by the plaintiff in error, and the driver of the carriage, Andrew Johnson, was in its employ, and that the plaintiff in error conducts a general livery business, letting carriages and horses for hire. The driver started out from the place of business of the plaintiff in error company with the carriage and team about noon, and drove to Market and Jackson streets, and from there to Taylor street, near Roby street. He had in the carriage M. F. Burke, H. A. Hohenadel, W. J. Kruse, and Harper. He took them from Market street to the funeral, and from there to the cemetery. On returning from the cemetery the carriage was stopped at a road house and other places by direction of the occupants. About 5:30 o'clock in the afternoon, pursuant to the direction of the passengers, the driver was driving said carriage south along Douglas boulevard, which at the railroad crossing in question is a wide street, with a roadway on each side. As the carriage approached the railroad crossing a train of cars was being switched from east to west across Douglas boulevard. There are three railroad tracks at this place, and the train was on the middle track. The driver saw the train when he was almost on the track and reined in his horses too late, so that the engine struck the near horse in the face. The driver tried to turn his horses to the left. The horses became frightended, and the pole of the carriage struck the side of the third freight car from the engine and was broken. The horses got beyond the driver's control, wheeled to the right, and ran down the railroad right of way towards the west. The occupants of the carriage, when the collision occurred, got out as best they could, and Harper, in alighting from the carriage, was apparently struck on the head by some portion of one of the cars of the train, and received injuries from which he died a few days later.

[1] The principal contention of plaintiff in error is that there was no evidence of the hiring of the carriage by the deceased. There is no direct evidence as to who hired the carriage, or whether it was engaged for hire from the plaintiff in error company. Defendant in error insists that under the circumstances a hiring will be presumed from the facts proven that at that time the plaintiff in error was engaged in the general livery business, letting out horses and carriages for hire, and from the further fact, which is also proven, that the carriage in which Harper was riding, and the team drawing the same, belonged to the plaintiff in error company, and that the driver was in the employ of that company; that the driver started with the team and carriage from the place of business of plaintiff in error, and drove from there to the place where he met Harper and his three companions,...