Liska v. Chicago Rys. Co.

• Decision Date: 02 December 1925
• Docket Number: Nos. 16141,16199.,s. 16141
• Citation: 318 Ill. 570,149 N.E. 469
• Parties: LISKA v. CHICAGO RYS. CO. et al.
• Court: Illinois Supreme Court

318 Ill. 570

149 N.E. 469

LISKA

v.CHICAGO RYS. CO. et al.

Nos. 16141, 16199.

Supreme Court of Illinois.

Oct. 28, 1925.

Rehearing Denied with Modification Dec. 2, 1925.

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

Action by Miles F. Liska against the Chicago Railways Company and others. Judgment for plaintiff was affirmed by the Appellate Court for the First District, and defendants bring certiorari and error. Both causes consolidated for review.

Judgment affirmed.Brown, Fox & Blumberg, of Chicago (John R. Guilliams, Charles Le Roy Brown, Franklin B. Hussey, Frank L. Kriete, and Joseph D. Ryan, all of Chicago, of counsel), for plaintiffs in error.

Finn & Miller, of Chicago, for defendant in error.

DE YOUNG, J.

Miles F. Liska, guardian of the estate of John Liska, a minor, brought an action of trespass on the case against the Chicago Railways Company, the Chicago City Railway Company, the Calumet & South Chicago Railway Company, and the Southern Street Railway Company, operating under the name and style of Chicago Surface Lines, to recover damages for personal injuries suffered by John Liska, aged three years and five months. The declaration consisted of four counts, each of which charged negligent operation of one of defendants' street cars, and that the injuries resulted from such negligence. The plea was not guilty. A jury trial resulted in a verdict of $25,000 for the plaintiff. There was a remittitur of $8,000, and judgment was entered for $17,000. On appeal to the Appellate Court for the First District the judgment was affirmed. On petition of the street railway companies, in No. 16141 a writ of certiorari was awarded, and in No. 16199 the same companies asserting the invalidity of certain statutes, sued out a writ of error. For the purpose of this review both causes have been consolidated.

The Chicago Railways Company operates a double track street railway on Kedzie avenue, a street running north and south in the city of Chicago. On November 20, 1920, John Liska lived with his parents at 2448 West Twenty-Fifth street, about 100 feet west of Kedzie avenue. At the southeast corner of these two streets there was a vacant lot with a frontage of 72 feet on Kedzie avenue. Adjoining this lot on the south was a candy store, facing west on Kedzie avenue. At about noon on the day mentioned Liska, the child, without his mother's knowledge, went to the candy store, and, after leaving the store, in attempting to cross Kedzie avenue in a northwesterly direction toward his home, suffered the injuries of which complaint is made.

Henry Rathman, an electrician, who was driving his automobile south in Kedzie avenue, testified that when he was about 150 feet north of Twenty-Fifth street he noticed a small boy standing at the east curbstone of Kedzie avenue, about 35 feet north of the candy store; that the boy started across the street in a northwesterly direction at a gait somewhat faster than a walk when a street car was about 125 feet to the south; that, when the boy approached the west rail of the north-bound track, he stopped for an instant; that the witness was then about to cross Twenty-Fifth street, and blew his automobile horn and applied the brakes; that the boy turned around and started back, and when he reached the east rail the street car knocked him down and he rolled under the car, and the witness stopped his automobile, ran around the rear end of the street car, picked up the boy, and took him to a hospital. Rathman further testified that he did not hear the bell rung; that when the boy stopped in the north-bound track the street car was 20 or 25 feet from him; that the boy was about 35 feet south of Twenty-Fifth street when he was struck; that the car went about 15 feet after striking him; and that the car stopped about 15 or 20 feet south of Twenty-Fifth street.

William Sloan, who rode with Rathman in the latter's automobile, testified that he saw the boy leave the candy store, stop for a moment at the curb opposite the center of the vacant lot, and then start to cross the street when the street car was from 125 to 150 feet to the south; that when the boy reached the center of the north-bound track he turned and saw the street car, then about 35 or 40 feet from him; that he started back, and was struck by the street car; and that Rathman and the witness took the boy to the hospital. On cross-examination he testified that when the boy left the candy store the street car was from 75 to 100 feet south of the store; that the boy proceeded about 35 feet on the sidewalk, and when he descended from the curb into the street the car was about 35 feet south of him; that the boy was going from 6 to 8 miles an hour; and that the speed of the car was not reduced until it was within 15 feet of the boy. He also testified that, when the boy reached the west rail of the north-bound track and turned around, the street car was about 50 feet to the south.

Edward Anderson, a passenger on the street car, who stood behind and to the left of the motorman, testified that he saw the boy between the curbstone and the east rail, opposite the center of the vacant lot; that the street car then was opposite the center of the candy store, or about 45 feet from the boy; that the boy ran out and stopped in the center of the north-bound track; that the motorman shut off the power, and when 10 or 15 feet from the boy applied the brakes; that the fender of the car was up, and when the car came to a stop its front end was about 40 feet south of Twenty-Fifth street. He testified on cross-examination that when he first discovered the boy the street car was running 8 or 10 miles an hour; that the candy store was 75 or 80 feet south of Twenty-Fifthstreet; that when he first saw the boy the latter was about 45 feet from the candy store, going in a westerly direction toward the street car track; that the car was then 50 or 55 feet from the boy, who was going faster than a child's walk; that the motorman was looking out of the window, and did not talk to anybody; that he turned off the power and sounded his gong; and that the car ran 15 to 20 feet after striking the boy.

Frank Chison, a passenger sitting on the left side of the front platform of the car, testified that he first saw the boy standing in the middle of the north-bound track, about 10 or 15 feet ahead of the car, facing northwest; that at the same time he felt the application of the brakes; that after striking the boy the car ran about its length, and stopped 10 feet south of Twenty-Fifth street. Upon cross-examination he testified that the car was going about 10 miles an hour, and that account of the dashboard he could not see the car strike the boy.

Andrew Chison, also a passenger, and seated to the right of his brother, Frank, corroborated the latter's testimony concerning the motorman's attempt to stop the car and the point at which it was stopped.

From other testimony offered in behalf of defendant in error it appeared that the boy's right foot was crushed 1 or 2 inches above the ankle; that the leg was amputated about 5 inches below the knee; that at the time of the trial the stump had not entirely healed; and that to enable the boy to use an artificial leg a further amputation of one and one-half inches of the leg would be advisable.

The foregoing witnesses were called by the defendant in error. On behalf of the plaintiffs in error, John F. Regan, the motorman, testified that the car he operated was 48 to 50 feet long, weighed 18 or 20 tons, and was equipped with air brakes and controller; that Kedzie avenue at the point in question was paved, and the distance from the curb to the outer rail was about 12 or 13 feet; that the day was clear, and the car attained a speed of 12 miles an hour at the center of the block between Twenty-Fifth and Twenty-Sixth streets; that he had a clear and unobstructed view of the street; that when he first saw the boy he was alone, standing in the gutter at the east curb, about 5 feet north of the north wall of the candy store, playing with something; that when the street car was about 35 feet from him he suddenly turned and ran west at about 6 miles an hour; that when the boy started the witness rang the gong, shut off the power, and applied the brakes and sand; that the boy ran into the northeast corner of the car, and never reached the outer rail; that the speed of the car was 6 miles an hour when the boy came in contact with it; and that it ran about 25 feet after he was struck; that the stopping appliances of the car were in good working order; that he stopped the car in 60 feet; and that the car could not have been brought to a stop in a shorter distance.

Fred Laugner, the conductor, testified that he was on the rear platform of the car; that, after leaving Twenty-Sixth street, at which a stop had been made, the car was running 12 or 13 miles per hour; that the air brakes were suddenly applied, and the car came to a stop in about 50 feet; and that the rear end of the car, after it stopped, was opposite the door of the candy store.

In the trial and Appellate Courts the defendant in error insisted that the motorman negligently operated the car, and that in consequence the child was injured. The plaintiffs in error, on the contrary, contended that the street car was not negligently operated, but that the boy was injured because he ran from the curb toward the track so suddenly that the motorman was unable to prevent the car striking him. The errors now assigned and argued by the plaintiffs in error are: (1) That the guardian had no right to sue, and that the judgment is therefore void; (2) that an erroneous test for the determination of liability was applied by the superior and Appellate Courts; (3) that erroneous instructions were given; (4) that the trial court erred in submitting to the jury the counts based on the failure to ring a gong or bell; (5) th...