Hayes v. Sampsell

• Decision Date: 04 October 1916
• Docket Number: No. 10568.,10568.
• Citation: 113 N.E. 611,274 Ill. 258
• Parties: HAYES v. SAMPSELL.
• Court: Illinois Supreme Court

274 Ill. 258

113 N.E. 611

HAYES

v.SAMPSELL.

No. 10568.

Supreme Court of Illinois.

June 22, 1916.

Rehearing Denied Oct. 4, 1916.

Error to Appellate Court, First District, on Appeal from Superior Court, Cook County; Marcus Kavanagh, Judge.

Action by William J. Hayes, by Elizabeth J. Casey, his next friend, against Marshall E. Sampsell, as receiver of the Chicago Union Traction Company. From judgment of Appellate Court (195 Ill. App. 365) affirming judgment for plaintiff, defendant brings certiorari. Affirmed.

Joseph D. Ryan and Frank L. Kriete, both of Chicago (W. W. Gurley and J. R. Guilliams, both of Chicago, of counsel), for plaintiff in error.

Thomas E. Rooney and Ferdinand Goss, both of Chicago, for defendant in error.

COOKE, J.

William J. Hayes, a minor, by Elizabeth J. Casey, his next friend, brought an action on the case in the superior court of Cook county against the receivers of the Chicago Union Traction Company to recover damages for personal injuries sustained by the said William J. Hayes through the alleged negligence of said receivers in the operation of a certain street car in the city of Chicago. The original declaration consisted of two counts. A demurrer to the second count was sustained, and an amended second count and an additional third count were thereafter filed. Each of these three counts alleged that on or about June 1, 1906, the defendants were common carriers of passengers and were operating cars and trains of cars for the conveyance of passengers upon and along an electric railroad in Van Buren street, in the city of Chicago; that on said day the plaintiff, William J. Hayes, was a passenger on one of said cars and was through the negligence of defendants thrown from said car to the ground and seriously injured. The negligence charged in the first count was that the defendants, by their servants, carelessly, negligently, improperly, and recklessly drove, managed, and operated said car. The negligence charged in the amended second count was that the defendants, by their servants, negligently caused and permitted said car to suddenly stop in an unusual and violent manner and without warning to the plaintiff. The additional third count was the same as the second amended count, except the negligence charged was starting the car in an unusual and violent manner instead of suddenly stopping it in that manner. A trial was had before a jury and resulted in a verdict in favor of the plaintiff for $5,000. After verdict, the plaintiff obtained leave to file two additional counts, which were substantially the same as the first count and the additional third count, except that, instead of alleging that the plaintiff was a passenger on the car, it was alleged that he was lawfully in or on said car. Motions by the defendants for a new trial and in arrest of judgment were overruled, and the court rendered judgment upon the verdict against Marshall E. Sampsell, as sole surviving receiver of the Chicago Union Traction Company, for $5,000. From that judgment Sampsell, as receiver, appealed to the Appellate Court for the First District, where the judgment of the superior court was affirmed. A writ of certiorari having been granted upon the petition of Sampsell, as receiver, the record has been brought here for review.

At the close of the plaintiff's case, and again at the conclusion of all the evidence, the defendants offered a peremptory instruction directing the jury to find the defendants not guilty. The refusal of the trial court to give the peremptory instruction is the principal ground relied upon by plaintiff in error for reversal.

At the time of receiving the injuries complained of in this suit, the defendant in error, William J. Hayes, was ten years of age. His stepfather, John Casey, was in the employof the receivers of the Chicago Union Traction Company as a street car conductor, and defendant in error had become acquainted with some of the other employés of the receivers, including Patrick Blackwell, a motorman. Defendant in error lived at the corner of Mozart and Van Buren streets, in the city of Chicago. Mozart street is a short block east of Francisco street. During the afternoon of June 1, 1906, between 4 and 5 o'clock, as defendant in error came out of a grocery store at the southeast corner of the intersection of Van Buren and Francisco streets, one of the street cars of the Chicago Union Traction Company running east on Van Buren street and operated by Blackwell as motorman stopped on the east side of the intersection of Van Buren and Francisco streets to receive certain passengers. Blackwell, seeing defendant in error at the corner, addressed him as follows: ‘Come here! What are you doing over here?’ Thereupon defendant in error walked to the front entrance of the car, where the motorman was stationed, and boarded the car, standing on the step of the front entrance as the car proceeded eastward on Van Buren street. The defendant in error told Blackwell that he lived on Mozart street and asked him to stop there. Blackwell, however, failed to stop at Mozart street, but after passing that street slackened the speed of the car because of a wagon which was being driven along the track in front of the car. When the wagon left the track, Blackwell suddenly started the car forward with a jerk, and defendant in error was thereby thrown from the step to the ground in front of the moving car and was seriously and permanently injured.

Defendant in error, as a witness in his own behalf, testified that he did not pay any fare while he was on the car, and that he did not intend to pay any fare when he boarded the car. The car was constructed with a front entrance and a rear entrance, either of which could be used by passengers in entering or leaving the car. The car was in charge of a conductor, whose duty it was to collect fares from all persons entering the car. The motorman had nothing whatever to do with the collection of fares, except that when a passenger boarded the car at the front entrance and remained on the front platform it was the duty of the motorman to signal the conductor that a passenger was on the front platform. The evidence tends to show that no such signal was given by Blackwell to the conductor while defendant in error was on the car. The evidence also shows that the motorman had authority to stop his car to receive and discharge passengers.

Plaintiff in error contends that the evidence most favorable to the defendant in error shows that he was not a passenger at the time he was injured but at most was merely a licensee; that the only duty which the receivers owed him was to refrain from willfully and wantonly injuring him; and that, as there is no evidence tending to show that the injury was willfully or wantonly inflicted, no liability was established against the receivers, and the peremptory instruction should therefore have been given. Defendant in error, on the other hand, contends that the facts as hereinbefore recited establish the relation of carrier and passenger between the receivers and defendant in error at the time he was injured, and that, even though it be held that he was not a passenger in the strict sense of the term, he was rightfully on the car by invitation of the motorman, and the receivers owed him the duty of exercising reasonable care in the operation of the car.

The testimony of defendant in error and of the motorman tended to prove that defendant in error boarded the car upon the invitation of the motorman. The motorman was fully aware of defendant in error's position on the car and conversed with him up until the time of the accident.

Plaintiff in error contends that in the additional counts, in which the relation of passenger and carrier is not expressly averred, the negligence...