Loftus v. Chicago Rys. Co.

• Decision Date: 16 June 1920
• Docket Number: No. 12583.,12583.
• Citation: 127 N.E. 654,293 Ill. 475
• Parties: LOFTUS v. CHICAGO RYS. CO.
• Court: Illinois Supreme Court

293 Ill. 475

127 N.E. 654

LOFTUS

v.CHICAGO RYS. CO.

No. 12583.

Supreme Court of Illinois.

June 16, 1920.

Error to First Branch Appellate Court, First Distric; on Appeal from Circuit Court, Cook County; Richard S. Tuthill, Judge.

Action by Fannie Loftus, as administratrix, against the Chicago Railways Company. Judgment of the circuit court for the plaintiff was affirmed by the Appellate Court (212 Ill. App. 659), and defendant brings error.

Reversed and remanded.

Charles LeRoy Brown, of Chicago (John R. Guilliams and P. L. McArdle, both of Chicago, of counsel), for plaintiff in error.

Daniel L. Madden and Roy C. Merrick, both of Chicago, for defendant in error.

DUNCAN, J.

A writ of certiorari was granted to plaintiff in error, the Chicago Railways Company, to have reviewed the judgment of the First Branch Appellate Court for the First District affirming a judgment of the circuit court of Cook county for $5,000 against plaintiff in error, in favor of Fannie Loftus, administratrix of the estate of Michael Loftus, deceased, for damages resulting to her as widow and next of kin by his death, alleged to have been caused by the negligence of plaintiff in error in operating one of its cars.

The declaration contains four counts. The first count charges negligence in propelling, operating, and controlling the car. The negligence charged in the second count is the operation of the car at an excessive rate of speed. The third count charges the operation of the car without the ringing of a bell or the sounding of any warning. The fourth count was dismissed at the trial. There was no allegation of willfulness or wantonness. The plea of plaintiff in error was not guilty.

The intestate, while in the act of crossing West Twelfth street, was struck and instantly killed by an east-bound street car operated by plaintiff in error, about 7:45 a. m. on April 11, 1914, at the junction of that street and Hoyne avenue. West Twelfth street extends east and west, and Hoyne avenue runs north into that street, but does not cross it. At said point of intersection West Twelfth street is 150 feet wide, having a central driveway and a roadway on the north and south thereof, separated from the center driveway by grassplots. The roadways are 25 feet 10 inches wide, and in them are laid the tracks of plaintiff in error; the west-bound cars traveling in the north roadway and the east-bound cars traveling in the south roadway. On each side of the street is a sidewalk, and the south sidewalk is 13 feet 11 inches wide. The accident occurred in the south roadway, in which deceased was walking north along the west side of the Hoyne avenue intersection. The distance from the curb of the south sidewalk to the east-bound track is 18 feet 1 inch. All three of the driveways are paved with asphalt. Hoyne avenue is 66 feet wide between building lines and the roadway is 37 feet 2 inches wide. Openings through the parkways are made across Twelfth street in line with the sidewalks and roadway in Hoyne avenue. The car which struck the deceased was a large pay-as-you-enter car, about 50 feet in length and 8 feet 4 inches wide, weighing, when empty, about twenty-five tons. The track is 4 feet 8 inches wide, and the overhang of the car is about 22 inches on each side. When the car arrived at Ogden avenue, two blocks west of Hoyne avenue, it was somewhat delayed by another east-bound disabled car that was there side-tracked. When the car in question started up again it was loaded to its capacity, and was very much crowded throughout, with from 140 to 160 passengers, and there were left there other passengers for whom there was no room on the car. After leaving Ogden avenue the car did not stop until it struck the deceased, but it slowed down as it approached Leavitt street, the next street east, and also as it approached a group of persons waiting to take it and who were standing on the south side of West Twelfth street, about 50 feet west of the west line of Hoyne avenue, and then increased its rate of speed again at or near the point where it passed the group waiting for it. Defendant in error's witnesses estimated the speed of the car at the time of the accident at from 20 to 27 miles an hour and its reduced speed as it approached the persons waiting for the car was estimated at from 12 to 15 miles an hour. The witnesses for plaintiff in error estimated the car's speed at the time of the accident at about 15 miles an hour and the reduced rate of speed at about 12 miles an hour. Only one witness testified that no bell was rung. Nine witnesses for plaintiff in error testified that the motormanwas sounding the gong in an unusual manner as the car approached Leavitt street and Hoyne avenue, for the purpose of notifying those waiting that he did not intend to stop. The Appellate Court found, as appears from the opinion, that the preponderance of the evidence indicated that the gong was sounded near the place at which deceased was struck. Loftus left his home that morning, which was south of Twelfth street, and walked up the west side of Hoyne avenue, intending to cross Twelfth street. He was alone, and carrying a small jug or jar. He had a clear, unobstructed view of the car that struck him after he reached the sidewalk on Twelfth street. He was observed to look at the car as he stepped off the curb, and again when about half the distance from the curb to the track, and he hesitated while he looked at it when about 3 or 4 feet from the track, and then started to cross it hurriedly. When he arrived at the point where he hesitated the car was about 75 feet west of him, according to the testimony of one of the defendant in error's witnesses. Two other witnesses estimated this last distance at 50 feet, while a fourth estimated it at 25 feet. The witnesses for plaintiff in error estimated that distance at from 6 to 35 feet. He was struck by the left front corner of the car as he was crossing, or just after he had crossed, over the north rail, and his body was thrown northeast about 35 feet. The car ran east Hoyne avenue, with the rear part of it from 12 to 15 feet east of the east line of that street, before it could be stopped, or a distance of about 125 feet. The deceased had good sight and good health on the day he was killed. He left surviving him a widow but no children.

It is argued with much earnestness by plaintiff in error that the deceased was guilty of contributory negligence as a matter of law, and that this court ought to so hold. This argument is predicated upon the assumption that the facts unquestionably show that during the entire period in which he walked from the curb to the place where he paused beforecrossing the track that the deceased was watching the car and deliberating upon the question whether or not he should try to beat the car and cross in front of it, and that he must have known that the car was not going to stop at the crossing, and that it was coming at a great rate of speed. It is virtually conceded by the plaintiff in error that it was a question for the jury to determine whether or not it was guilty of the negligence charged in the first and second counts of the declaration. Under the facts proved in this case we...