North Chicago St. R. Co. v. Polkey

• Citation: 203 Ill. 225,67 N.E. 793
• Parties: NORTH CHICAGO ST. R. CO. v. POLKEY.
• Decision Date: 16 June 1903
• Court: Illinois Supreme Court

203 Ill. 225

67 N.E. 793

NORTH CHICAGO ST. R. CO.

v.POLKEY.

Supreme Court of Illinois.

June 16, 1903.

Appeal from Appellate Court, First District.

Action by S. W. Polkey against the North Chicago Street Railroad Company. From a judgment in favor of plaintiff, affirmed by the Appellate Court, defendant appeals. Reversed.John A. Rose and Louis Boisot (W. W. Gurley, of counsel), for appellant.

J. Warren Pease, for appellee.

CARTWRIGHT, J.

Appellee, as administrator of the estate of Gustave Rucks, deceased, brought this suit in the superior court of Cook county, against appellant, to recover damages resulting to the next of kin from the death of said Gustave Rucks, and obtained a judgment for $5,000, which has been affirmed by the Branch Appellate Court for the First District.

Deceased was killed in the afternoon of March 18, 1899, while standing on the footboard of the defendant's grip car, and passing through the LaSalle street tunnel, in the city of Chicago. He was in the employ of the American District Telegraph Company, and was between 17 and 18 years of age. He was sent from the office on the south side, together with nine other messenger boys, to the Marquette Club, on the north side. They went to the corner of Randolph and LaSalle streets to take a Clark street cable car. There was a parade of soldiers on the street returning from the Spanish war, which stopped travel for a time, and a large crowd gathered. When a train finally came along it was crowded, and the boys boarded the grip car at the street corner on the righthand side. Rucks and most of the boys with him stationed themselves on the running board at the side of the grip car. He stood opposite the second post from the front and held to the upright bar with his left hand. There were one or two others in front of him, and several behind him, on the running board. In passing through the tunnel, the walls, which were of rough stone, were quite near to the car; the witnesses for the plaintiff giving different estimates, varying from 3 to 12 inches from the running board or footboard. There was a large number of witnesses, but none of them knew exactly how the accident occurred, although it appears that he was thrown off in some way by coming in contact with the wall. He was turned around and passed between the wall and the boy who stood next to him, and fell to the floor of the tunnel, suffering the injuries of which he died. He was a large boy, 5 feet 6 inches in height, heavily built, and broad in the shoulders, and weighed about 150 pounds. Plaintiff's witness, who gave the only particular account of the accident, said that the conductor was standing in the center of the car, collecting fares, and reaching out and ringing the bell for the purpose of registering fares collected; that the witness reached in his pocket for his fare, and noticed Rucks' arm go up as though reaching for his fare; that witness could not see where his hand went, but saw his shoulder rise up, and his arm, as though bending at the elbow; and that he suddenly went past the witness against the wall. The evidence tended to prove that Rucks, hearing the bell ring and the conductor gathering fares, attempted to reach down in his pocket for his car ticket or fare, and in that way struck the wall. As soon as the accident happened, a number of passengers called to the gripman to stop the car, and he put on the brakes and stopped it at once within half a car length.

The court, at the request of the plaintiff, gave to the jury the fifth instruction, as follows: ‘If the jury find, from the evidence herein, that the plaintiff has made out his case, as set forth in his declaration, by a preponderance of the evidence herein, then they should find for the plaintiff herein.’ By this instruction the court submitted to the jury the general proposition whether the plaintiff had made out his case as set forth in his declaration, and directed them to find for him, if he had so made out his case; but the court refused to give instructions asked by the defendant, which stated and explained the issues formed by the declaration and the plea, and the refusal to give such instructions is assigned as error.

The declaration contained five counts. The first alleged that Rucks became a passenger on the car; that he was unable to find a seat, and took passage on the footboard from Randolph street down into a certain tunnel used by the defendant for the purpose of passing its cars under the Chicago river; and that the defendant so carelessly and negligently managed and controlled the train that Rucks, while in the exercise of all due care, became and was pushed, scraped, thrown, and knocked off said footboard, suffering injuries from which he died. There was no evidence whatever tending to show any careless or negligent management or control of the train while it was proceeding through the tunnel. It was stopped immediately upon the occurrence of the accident, and it was admitted by counsel for the plaintiff, on the trial, that the car was moving smoothly at the time. The second count, after alleging that Rucks became a passenger, alleged that while he was in close proximity to the walls of the tunnel defendant carelessly and negligently demanded his fare, thus causing him to reach within his pocket for said fare, and that while he did so, in the exercise of due care, his arm or certain portions of his body, because of said movement, struck the wall of said tunnel, causing him to lose his hold and to be thrown to the ground. The fourth count was to the same effect; the negligence charged being that the defendant carelessly and negligently collected, or attempted to collect, fare from Rucks, causing him to reach within his pocket for his fare, and while he did so, in the exercise of ordinary care, his arm and a certain portion of his body, because of such movement, struck or touched the walls of the tunnel, which, together with the forward motion of the car, caused him to lose his hold. The only evidence...