Lavander v. Chicago City Ry. Co.

• Citation: 296 Ill. 284,129 N.E. 757
• Decision Date: 15 February 1921
• Docket Number: No. 13540.,13540.
• Parties: LAVANDER v. CHICAGO CITY RY. CO. et al.
• Court: Supreme Court of Illinois

296 Ill. 284

129 N.E. 757

LAVANDER

v.CHICAGO CITY RY. CO. et al.

No. 13540.

Supreme Court of Illinois.

Feb. 15, 1921.

Error to Appellate Court, First District, on Appeal from the Circuit Court, Cook County; Charles M. Walker, Judge.

Action by Hannah Lavander against the Chicago City Railway Company and others. Judgment for plaintiff was affirmed by the Appellate Court, and the defendants bring certiorari.

Judgments of Appellate and circuit courts reversed, and cause remanded.

Harry P. Weber, George W. Miller, Arthur J. Donovan, and Arthur A. Anderson, all of Chicago (John R. Guilliams and Warner H. Robinson, both of Chicago, of counsel), for plaintiffs, in error.

Earl J. Walker, of Chicago, for defendant in error.

STONE, J.

Defendant in error brought an action in tort against plaintiffs in error, the Chicago City Railway Company and the Chicago Railways Company, in the circuit court of Cook county, to recover damages for injuries alleged to have been received on June 25, 1916, by reason of a fall which she received while attempting to board a street car at the intersectionof Paulina and West Madison streets, in the city of Chicago. The declaration consists of two counts. The first count, after alleging the ownership and operation of the street car, alleges that while the street car had stopped at the intersection of said streets for the reception of passengers, and while plaintiff was endeavoring to board the car as a passenger, using ordinary care for her own safety, the defendants, by their employees, negligently caused the street car to be suddenly and violently started, and thereby she was thrown to the street and injured. The second count is similar to the first, except that it charges that while the car was stopped and the plaintiff was in the act of boarding the car, using ordinary care for her own safety, the defendants failed to afford her a reasonable opportunity, and by reason of their negligence in the operation of the car the plaintiff was thrown to the street and injured. The plaintiffs in error filed a plea of general issue. The case was tried before a jury, which returned a verdict for the plaintiff for $2,000. An appeal was prayed to the Appellate Court, where the judgment was affirmed, and the cause comes here on writ of certiorari.

Plaintiffs in error assign as error the giving and refusal of certain instructions by the trial court. They contend that there was a sharp conflict in the evidence and that it was important and necessary that the instructions to the jury be free from error.

The plaintiff's evidence showed that she, a woman of about the age of 50 years, on the evening of the accident had attended church, and on her return homeward, about 10:30 p. m., she stopped at Paulina and West Madison streets for the purpose of taking a north-bound street car; that when she reached the intersection she crossed first to the southwest corner, and seeing a north-bound car she proceeded to cross Paulina street, on which street the car was being operated, in order to board the same. In doing so she passed to the rear of the north-bound car. Her evidencetends to establish that she passed around the rear of the car to the east side of the rear platform and to the center of the entrance, where she waited for five people who were in front of her to get on; that four of them boarded the car and the fifth stepped to the right and assisted her onto the step; that she took hold of the righthand bar with her right hand and placed her right foot on the step and her left foot on the platform; and that as she was in the act of pulling herself into the car it started with a jerk throwing her onto the street. There is other testimony tending to corroborate her. Defendant's theory is that the car remained standing until every one who was waiting had boarded the car; that the conductor looked out and saw that no one else was attempting to get on the step, whereupon he signaled and the car started slowly and smoothly; that the plaintiff was still coming around the rear of the car and had not gotten around to the step when the car started to move away, and she hastened and reached for the rear hand bar, and that when she got hold of it she fell.

The defendant in error in support of her testimony called a man and his nine year old daughter, who were alighting from the front platform. The testimony of these witnesses tended to corroborate the theory of the defendant in error. Plaintiffs in error offered the testimony of six witnesses, two of whom were standing on the curb near the platform and four of whom were on the rear platform. The testimony of these witnesses tended to corroborate the theory of the plaintiffs in error. Without reviewing in detail the evidence in the case, it is sufficient to say that the evidence was in sharp conflict as to how the injury occurred and as to whether or not the defendant in error was in the act of boarding the car at the time the same started. It is necessary in such condition of the record that the instructions to the jury be free from error. Chicago & Eastern Illinois Railroad Co. v. Donworth, 203 Ill. 192, 67 N. E. 797;Chicago & Alton Railroad Co. v. Kelly, 210 Ill. 449, 71 N. E. 355;Perkins v. Knisely, 204 Ill. 275, 68 N. E. 486.

The first count of the declaration charged that the defendant in error was a passenger on the car when the same was negligently started up by plaintiffs in error. If defendant in error was in the act of boarding the car when it was started up it cannot be doubted that she was a passenger. Klinck v. Chicago City Railway Co., 262 Ill. 280, 104 N. E. 669,52 L. R. A. (N. S.) 70, Ann. Cas. 1915B, 177. If she was on the street and was not in the act of boarding the car she was not a passenger and a sudden starting of the car could not be negligence as to her, as plaintiffs in error would owe her no duty as a passenger until she had become such. In this...