McMahon v. Chicago City Ry. Co.

• Decision Date: 23 April 1909
• Citation: 239 Ill. 334,88 N.E. 223
• Parties: McMAHON v. CHICAGO CITY RY. CO.
• Court: Illinois Supreme Court

239 Ill. 334

88 N.E. 223

McMAHON

v.CHICAGO CITY RY. CO.

Supreme Court of Illinois.

April 23, 1909.

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; A. H. Chetlain, Judge.

Action by Mary E. McMahon against the Chicago City Railway Company. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Affirmed.Samuel S. Page and Watson J. Ferry (John R. Harrington, of counsel), for appellant.

Cunningham & Cunningham, for appellee.

CARTER, J.

This is an action on the case to recover damages for personal injuries alleged to have been sustained by appellee while a passenger on one of appellant's electric street railway cars in Halsted street, near Forty-Eighth, in the city of Chicago. On a jury trial in the superior court of Cook county appellee recovered a judgment April 20, 1907, for $1,850, from which amount the plaintiff remitted $200, on a suggestion of the trial judge that he did not regard the proof as to the services of the physician, amounting to $200, sufficient. The judgment was affirmed by the Appellate Court, and the case has been appealed to this court.

Sunday afternoon, August 23, 1903, appellee and her husband were passengers on a street car in Chicago operated by appellant. They had transfers from another line of the same company entitling them to ride. A dispute arose between the husband and the conductor of the car concerning further transfers, which lasted for some time, the testimony showing that the conductor renewed the controversy several times as he passed by them in the car, and also showing, without contradiction, that the conductor addressed vituperative, profane, and obscene language to them, and that the altercation finally culminated in a scuffle between the conductor and the husband; that the conductor started the scuffle by attempting to strike the husband; that when he was struggling in the grasp of some of the passengerswho were trying to prevent him from making a physical assault on the husband his arm or elbow struck appellee and knocked her against the corner of the seat, and afterwards in the mêlée she was thrown over and seriously injured. At the time the conductor attempted to strike the husband appellee was sitting across the aisle from her husband. No attempt was made by appellant to contradict the main features of the evidence as to what started the affair or that appellee was injured thereby. The conductor and motorman did not testify. Appellant by cross-examining witnesses of appellee and by the introduction of other testimony endeavored, however, to show that the injury was not as serious as contended.

Appellant was a common carrier of passengers; and, while not an insurer against any possible injury that passengers might receive while on its cars, it was bound not only to protect them from the violence and insults of strangers and co-passengers, but also from the violence and insults of its own servants. Chicago & Eastern Railroad Co. v. Flexman, 103 Ill. 546, 42 Am. Rep. 33. ‘The carrier's obligation is to carry his passenger safely and properly and to treat him respectfully, and, if he intrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust. The law seems to be now well settled that the carrier is obliged to protect his passenger from violence and insult from whatever source arising. * * * If this duty to the passenger is not performed, if this protection is not furnished, but, on the contrary, the passenger is assaulted and insulted through the negligence or the willful misconduct of the carrier's servant, the carrier is necessarily responsible.’ Goddard v. Grand Trunk Railway Co., 57 Me. 202, 2 Am. Rep. 39. See, also, Craker v. Chicago & Northwestern Railway Co., 36 Wis. 657, 17 Am. Rep. 504;Nieto v. Clark, 1 Cliff. 145, Fed. Cas. No. 10,262.

Counsel for appellant do not seriously question that this is the measure of responsibility cast upon common carriers. They do, however, contend that the court committed such error on the trial as to require a reversal of this judgment. They first contend that the dispute and conversation over the transfers was not a part of the res gestae, and was improperly admitted in evidence. The res gestae have been defined as ‘those circumstances which are the undesigned incidents of a particular litigated act and which are admissible when illustrative of such act.’ 1 Wharton on Evidence, § 259. The ‘ground for the admissibility of such declarations is that they are the natural and spontaneous utterance of the declarant, so closely connected with the transaction in question as to be, in effect, a part of it, there having been no opportunity for premeditation or design.’ 1 Elliott on Evidence, § 538. A narrative of past events cannot be introduced as a part of the res gestae. Continuousness, however, is not always to be measured by time. A transaction in which the parties are absorbed may last for weeks, so as to make what is said and done in connection with it part of the res gestae. 1 Wharton on Evidence, § 261. This court has said that the true inquiry, according to all authorities, is whether the declaration is a verbal act, illustrating, explaining, or interpreting other parts of the transaction of which itself is a part, or is merely a history or part of the history of a completed past affair. Chicago West Division Railway Co. v. Becker, 128 Ill. 545, 21 N. E. 524,15 Am. St. Rep. 144;Montag v. People, 141 Ill. 75, 30 N. E. 337;Pennsylvania Co. v. McCaffrey, 173 Ill. 169, 50 N. E. 713;Lander v. People, 104 Ill. 248. The conversations between the conductor, appellee, and the husband were contemporaneous with the main fact-that is, the injury-and were properly admitted as a part of the res gestae.

The trouble with the conductor resulted in appellee, her husband, and a friend leaving the car immediately after the appellee was injured. This friend, Kelly, testified that after leaving the car he ‘invited the conductor off the car.’ Counsel insist that this statement is not a part of the res gestae. It was made in response to a question asked by appellee's counsel as to what the conductor said to them as they left the car. It was not responsive to that question; and, while the question was objected to, no motion was made to exclude the answer. For that reason, even if Kelly's remarks were not a part of the res gestae, the point, not having been properly preserved, cannot be raised here.

The further contention is made that the remittitur of...