North Chicago St. Ry. Co. v. Cotton

Decision Date18 January 1892
PartiesNORTH CHICAGO ST. RY. CO. v. COTTON.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from appellate court, first district.

Action by James Whitcomb Cotton against the North Chicago Street-Railway Company for personal injuries. Defendant appeals from a judgment for plaintiff. Affirmed.W. J. Hynes and H. H. Martin, (E. Furthmann, of counsel,) for appellant.

Stiles & Lewis and Chas. M. Peale, for appellee.

BAILEY, J.

This was an action on the case, brought by James Whitcomb Cotton against the North Chicago Street-Railway Company to recover damages for a personal injury. The plaintiff, at the time he was injured, was a passenger on one of the defendant's street-cars, run by cable, and was standing on the rear platform of the car. While in that position, as he was passing through the La Salle-Street tunnel, he was run into by another of the defendant's cars, following on the same track, thereby receiving the injuries complained of. The declaration consists of three counts. The charge of negligence in the first count is as follows: ‘And the defendant then and there so negligently run and operated its said road and the cars propelled thereon that by reason thereof the car in which the plaintiff was then and there being carried as aforesaid was run into from the rear by another car then and there being run by the said defendant upon said street, and thereby the plaintiff, who was then and there in the exercise of all due care and caution, was greatly hurt, bruised,’ etc. The second count alleges that, while the car on which the defendant was being carried was temporarily stopped and at rest, it was approached from the rear by another car, called a ‘grip-car,’ drawing a train of two ordinary cars; ‘that by and through the negligence of the said defendant the grip of the said grip-car was then and there defective and out of order, so that the same could not be detached or disconnected from the said cable, and thereby the said grip-car was propelled violently against the car in which the plaintiff was riding as aforesaid,’ and thereby he was injured. The third count alleges that the car on which the plaintiff was being carried, while temporarily stopped and at rest, was approached from the rear by another car of the defendant, called a ‘grip-car,’ drawing a train of two ordinary cars; ‘that the brakes on the last-mentioned train of cars were defective, insufficient, and out of order, of which the defendant then and there had notice, and by and through the negligence of the defendant in that behalf the last-mentioned train of cars could not be brought to a stop in time to prevent a collision with the car in which the plaintiff was then and there riding as aforesaid, but was driven violently upon and into said car,’ and thereby the plaintiff was injured. The defendant pleaded ‘not guilty,’ and at the trial the jury found the defendant guilty, and assessed the plaintiff's damages at $2,000. For this sum and costs the plaintiff had judgment. On appeal to the appellate court the plaintiff remitted from his said judgment the sum of $207, and the judgment was thereupon affirmed. The present appeal is from said judgment of affirmance.

The grounds upon which a reversal of the judgment was sought in the appellate court, and is now asked for here, are: (1) The admission by the trial court of improper evidence; (2) the exclusion of competent and proper evidence; and (3) the misconduct of the counsel for the plaintiff at the trial. The evidence shows that on the 3d day of November, 1888, the plaintiff got on board of one of the defendant's trains of cable-cars, on Dearborn street, in the south division of Chicago, to be carried as a passenger to a point in the north division of said city. The car the plaintiff took was the rear car of the train; and, the seats in said car being all occupied, with a number of persons standing up, the plaintiff and severalothers took a position on the rear platform of the car. Before reaching the La Salle-Street tunnel under the Chicago river, various other passengers got on board, so that on reaching the tunnel little, if any, standing-room remained in the car. The train proceeded about half way through the tunnel, and there came to a halt, the plaintiff and others still remaining standing on said platform. A few minutes after the train stopped, another train approached rapidly on the same track from the rear, and, those in charge of it being unable or failing to stop it, said train ran against the car on which the plaintiff was standing, and struck the plaintiff, inflicting the injury of which he complains. The colliding train consisted of a grip-car and two ordinary cars attached thereto, all being heavily loaded with passengers. The driver of the grip-car, after descending a short distance into the tunnel, saw the other cars ahead of him, but at first was unable to determine whether they were in motion or standing still. As soon as he discovered that they were standing still, he detached the grip from the cable and turned on the brake which was on his car, but, finding that said brake was insufficient to check the speed of the train, he signaled to the conductors on the other cars to also put on the brakes on those cars, but, said conductors being inside their cars, engaged in the collection of fares, his signals were unheeded, and the brakes on the other cars were not applied. As a consequence the weight and momentum of those cars forced the grip-car forward until it collided with the car in front of it. The foregoing facts were not contradicted at the trial, and are not disputed here. The plaintiff at the time was wearing an artiticial leg, one of his legs having been amputated above the knee about 10 years before. The other passengers escapped from the platform before the collision, but the plaintiff was unable to do so, and the colliding car, as he claims, struck him so as to press him against the end of the car on which he was riding, breakinghis artificial leg, and bruising and lacerating the stump of the leg which had been amputated. John H. Timms, the grip-car driver on the colliding train, was called as a witness for the plaintiff, and in the course of his examination he was asked whether he had any sand-box on his train, and was permitted, against the objection and exception of the defendant, to answer that he did not. He was also permitted to testify, against the objection and exception of the defendant, that the colliding car was an old horse-car made over into a grip-car. Walter L. Tilton, a grip-car driver in the employ of the Chicago City Railway Company, who had had over three years' experience in the management of grip-cars, being called as a witness for the plaintiff, was asked whether, in his opinion, for the proper control of cable-cars, with reference to human life and safety, a sand-box should be used upon the grip-car. To this he was permitted, against like objection and exception, to answer: ‘It is a great help, sir, when the track is slippery.’ It is insisted on the part of the defendant that the admission of this evidence was improper and erroneous, because the declaration contains no charge of negligence in failing to have said grip-car furnished with a sand-box, or in using an old horse-car made over into a grip-car. The rule is a fundamental one that a plaintiff must recover, if at all, upon the case made by his declaration; and in the application of this rule to actions on the case for negligence it is held that a plaintiff cannot charge one species of negligence in his declaration and recover upon proof of negligence of a different character. But we are of the opinion that this rule cannot be invoked here, for two sufficient reasons.

In the first place, under the circumstances of this case, this evidence to which exception was taken could have resulted in no prejudice to the defendant. The evidence of the injury to the plaintiff, and the circumstances under which it was inflicted, were alone sufficient to raise a presumption of negligence on the part of the defendant; and, as no evidence was offered to rebut that presumption, a verdict in favor of the plaintiff necessarily followed, wholly regardless of the evidence objected to. The general rule seems to be that proof of an injury occurring as the proximate result of an act which, under ordinary circumstances, would not, if done with due care, have injured any one, is enough to make out a presumption of negligence, and this is held to be the rule even where no special relation like that of passenger and carrier exists between the parties. Thus, in Byrne v. Boadle, 2 Hurl. & C. 722, the plaintiff was injured by a harrel falling from the window of a warehouse into the highway, and it was held that the mere fact of the injury, and the cause of it, created a presumption of negligence on the part of the warehouse keeper, the court remarking that a barrel cannot roll out of a warehouse window without some negligence. So, in Scott v. Docks Co., 3 Hurl. & C. 596, the plaintiff, an officer of the customs, was at the defendant's docks in the discharge of his duty, and, as he was passing from one door-way of the defendant's warehouse to another, he heard a rattling of chains, and six bags of sugar fell on him. On proof of these facts alone a recovery of damages was sustained, the court laying down the law as follows: ‘There must be reasonable evidence of the negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.’ In many cases it has been held that in a suit by a passenger against a carrier for an injury the mere proof of the accident by which the injury was occasioned is sufficient to...

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