North Chicago St. Ry. Co. v. Williams

• Citation: 140 Ill. 275,29 N.E. 672
• Parties: NORTH CHICAGO ST. RY. CO. v. WILLIAMS.
• Decision Date: 18 January 1892
• Court: Supreme Court of Illinois

140 Ill. 275

29 N.E. 672

NORTH CHICAGO ST. RY. CO.

v.WILLIAMS.

Supreme Court of Illinois.

Jan. 18, 1892.

Appeal from appellate court, first district.

Action by John F. Williams against the North Chicago Street-Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.Wm. B. Keep and E. Furthmann, for appellant.

Stiles & Lewis, for appellee.

MAGRUDER, C. J.

This is an action for damages for a personal injury, begun on November 23, 1888, in the superior court of Cook county by the appellee, Williams, against the appellant company. Plaintiff below recovered a judgment, which has been affirmed by the appellate court. Appellant was operating a line of street-railway cars, drawn by horses, in the city of Chicago. In May, 1888, it was reconstructing its tracks, so as to substitute the cable system for horse-power. As it was necessary to tear up the street in order to insert the cable machinery, it removed the track in Lincoln avenue, north of its intersection with Garfield and Cleveland avenues, to the east side of the street, and near the curb of the east sidewalk. Upon the track thus laid for temporary use it was propelling its cars by horse-power, when the accident occurred by which the plaintiff was injured. On the east side of Lincoln avenue,-which runs north-west and south-east,-just north-west of the corner where it intersects Cleveland avenue, running directly north and south, stood a telegraph or telephone pole, outside of the curb line of the street, and leaning somewhat to the west. The east rail of the track was a little lower than the west one, and was just two feet from the bottom of the telegraph pole. When an open car was passing, there were from 9 to 12 inches between the telegraph pole and the east ends of the seats; and if a man stood on the rail or platform running along the east side of an open car passing that point the distance between his shoulders and the pole would vary from 2 to 5 inches in different cars. On the evening of May 23, 1888, between 7 and 8 o'clock, and while it was yet light enough to see clearly, the plaintiff, who was a physician, and on his way to see a patient, boarded one of appellant's open cars going north-west upon Lincoln avenue on said temporary track. Plaintiff, and a policeman who was with him, were standing a short distance south or south-east of the corner where the pole stood, and east of the east track. When the car came along, and while it was in motion, they stepped up upon the rail or platform on the east side of the car. The policeman, who was in the rear of the plaintiff, succeeded in getting up upon the rear platform, but before the plaintiff stepped from the platform into a seat he was brought in contact with the telegraph pole, and knocked off the car, and, falling upon the ground, was injured. The negligence charged against the company is that it placed the temporary track too near the curb line of the street and the telegraph pole upon the east side thereof.

The appellant assigns as error that the court refused to give the ninth and tenth instructions asked by it. These instructions announce the proposition that, where a man gets upon a street-car drawn by horses while it is in motion, and receives an injury in so doing, his act is such conclusive proof of contributory negligence that he cannot recover. The refusal of the instructions was not error. The jury were fully instructed that the plaintiff could not recover unless he showed that he was in the exercise of ordinary care for his own safety when the injury occurred. Whether the plaintiff, in getting upon the horse-car while it was in motion, was or was not in the exercise of due care, was a matter for the determination of the jury under all the circumstances of the case. City of Chicago v. McLean, 133 Ill. 148, 24 N. E. Rep. 527; Railroad Co. v. Hutchinson, 120 Ill. 587, 11 N. E. Rep. 855; Myers v. Railway Co., 113 Ill. 386, 1 N. E. Rep. 899; Pennsylvania Co. v. Frana, 112 Ill. 398. In Schacherl v. Railway Co., 42 Minn. 42, 43 N. W. Rep. 837, it is said: ‘It is well settled that it is not negligence per se for a person to get on or off a street-car drawn by horses while it is in motion. It depends upon the circumstances surrounding each case, and the question is ordinarily one of fact to be submitted to a jury.’ In McDonough v. Railroad Co., 137 Mass. 210, it was contended that the attempt of the plaintiff to get upon the front platform of a horse-car while it was in motion should be held to be ‘conclusive that he was not in the exercise of duecare;’ but the supreme court of Massachusetts say in that case: ‘There is no rule of law that riding or stepping upon the front platform of a horse-car when in motion is negligence.’ Meesel v. Railroad, 8 Allen, 234, and other cases. Whether any particular act of that kind is negligence must depend upon the circumstances attending and characterizing it, and must ordinarily be determined by the judgment of a jury. In the later case of Briggs v. Railway Co., 148 Mass. 72, 19 N. E. Rep. 19, the same court said: ‘Whether a person riding upon the front or rear platform of a horsecar, or getting on or off at either platform while the car is in motion, is in the exercise of due care, has repeatedly been decided to be a question of fact for a jury.’ The same doctrine has been held in New York. In Eppendorf v. Railroad Co., 69 N. Y. 195, it was said: ‘It cannot be said, as matter of law, that it is always negligent for a person to get upon a street-car while in motion.’ Morison v. Railroad Co., (Sup.) 8 N. Y. Supp. 436. We are referred to the case of Railway Co. v. Scates, 90 Ill. 586, as holding a contrary doctrine. There, however, the party, who was injured by being brought in contact with a post upon the railroad platform, attempted to get upon one of the cars of a steam-railway train after the train had started from the depot or station. A stricter rule than that which is applicable to horse-cars must be held to apply to steam-cars, whose movements are more rapid, and whose propelling power is more dangerous. As was said by the supreme court of Pennsylvania in Railway Co. v. Walling, 97 Pa. St. 55: ‘An act which would strike all minds as gross carelessness in a passenger on a train drawn by steam-power might be prudent if done on a horse-car.’ In the later case of Railway Co. v. Mumford, 97 Ill. 560, the plaintiff was injured while alighting from a horse-car which was in motion, and it was held that it was properly left to the jury to decide whether the injury was due to the negligence of the plaintiff or of the driver of the car. In the case at bar, while the proof shows that the car was in motion, it does not show that its motion was otherwise than very slow. Both Lloyd, the policeman, and the plaintiff swear that they ‘stepped’ upon the car. The act of ‘stepping’ involves the idea of slow movement, and these parties could not have stepped upon the car if it had been going rapidly. There is nothing in the evidence, so far as we can discover, to justify the assumption, contained in defendant's refused instruction No. 9, that the plaintiff ‘jumped’ upon the car. As the car was passing a point where three streets intersected each other, and where the street on which the car was moving was in a dangerous condition by reason of the excavations for the cable, and by reason of the piles of dirt and débris caused by such excavations, the motion of the car must necessarily have been slow.

It is also assigned as error that the court refused to instruct the jury that the defendant was not guilty of any negligence. Where a railroad company places its track so near an obstruction, which it is necessary for its cars to pass, that its passengers, in getting on and off the cars, and while upon them, are in danger of being injured by contact with such obstruction, it is a fair question for the jury whether the company is or is not guilty of negligence. In Railroad Co. v. Welch, 52 Ill. 183, a brakeman, while in discharge of his duties upon a slowly moving train, was knocked off the car by an a wning projecting from a station-house of the company on the line of the road. The company was held to have been guilty of negligence, the dangerous proximity of the awning having been known to its division superintendent and other officers. There was the same holding in Railroad Co. v. Gregory, 58 Ill. 272, where the company's fireman, while in the discharge of his duty, was injured by a ‘mail-catcher,’ which had been placed by the company near its tracks. Again, in Railroad Co. v. Russell, 91 Ill. 298, a brakeman engaged in his duties, while descending from the top of a freight-car in motion, and coming in collision with a telegraph pole so near the side track that freight cars passed within 18 inches of it, was thrown from the car and killed. The company was held liable, although it did not place the pole where it was. It was there said that the company should not have suffered the obstruction to be in such dangerous proximity to the track, and that they were affected with knowledge of its position, because it had been there a sufficient length of time to give rise to a presumption of notice. Railroad Co. v. Pondrom, 51 Ill. 333;Dickinson v. Railway Co., 53 Mich. 43, 18 N. W. Rep. 553. It may be true, as claimed by counsel, that the appellant was obliged to move its track to the east in order to make the contemplated improvement; but it was a question for the jury to determine whether too much space was left in the middle of the street for those putting in the cable, and too little space for the passage of the cars on which the public traveled, or whether the contrary was the fact.

It is also assigned as error that the court refused to give the eleventh and twelfth instructions asked by the defendant. These...