Northern Trust Co. v. Chicago Rys. Co.

• Decision Date: 28 October 1925
• Docket Number: No. 16142.,16142.
• Citation: 318 Ill. 402,149 N.E. 422
• Parties: NORTHERN TRUST CO. v. CHICAGO RYS. CO.
• Court: Illinois Supreme Court

318 Ill. 402

149 N.E. 422

NORTHERN TRUST CO.

v.CHICAGO RYS. CO.

No. 16142.

Supreme Court of Illinois.

Oct. 28, 1925.

Action by the Northern Trust Company, administrator, against the Chicago Railways Company. Judgment of the circuit court for plaintiff was affirmed on appeal to the Appellate Court (232 Ill. App. 246), and an appeal was allowed defendant on certificate of importance.

Reversed and remanded.

Farmer and Duncan, JJ., dissenting.Appeal from Third Branch, Appellate Court, First District, on Appeal from Circuit Court, Cook County; Thomas G. Windes, Judge.

Brown, Fox & Blumberg, of Chicago (John R. Guilliams, Charles Le Roy Brown, Joseph D. Ryan, and Frank L. Kriete, all of Chicago, of counsel), for appellant.

Fyffe & Clarke and Earl J. Smith, all of Chicago (Colin C. H. Fyffe, of Chicago, of counsel), for appellee.

DE YOUNG, J.

The Northern Trust Company, as administrator of the estate of George McElroy, deceased, brought an action of trespass on the case against the Chicago Railways Company to recover damages resulting from the death of McElroy, which, it is claimed, was caused by the negligent operation of one of the defendant's street cars. The declaration consisted of five counts, of which the first charged general negligence in the operation of the car; the second, operation of the car at a high and dangerous rate of speed; the third, operation of the car without ringing a bell or sounding a warning; the fourth, operation of the car without a brightly lighted headlight, in violation of an ordinance of the city of Chicago; and, fifth, operation of the car without a sufficient headlight. On the second day of the trial, more than a year after the accident, pursuant to leave granted, the plaintiff amended the fourth count by substituting for the provisions of the ordinance originally declared upon, the provisions of an amended ordinance requiring a brightly lighted headlight, passed on December 28, 1914. The defendant filed a plea of the statute of limitations to the fourth count as amended. A demurrer to that plea was sustained. An order was then entered that the plea of the general issue filed to the original declaration stand as the defendant's plea to the fourth count as amended. A verdict for $5,000 in favor of the plaintiff followed, upon which, after motions for a new trial and in arrest of judgment had been denied, judgment was entered. On an appeal to the Appellate Court for the First District the judgment of the circuit court was affirmed. By a further appeal upon a certificate of importance the record is now here for review.

Appellant, the Chicago Railways Company, operates a double track street railway on Crawford avenue, between Bryn Mawr avenue on the north and Thirty-First street on the south. Thomas street intersects Crawford avenue at right angles, and is about five and one-half miles south of Bryn Mawr avenue. On Sunday evening, June 27, 1920, one of appellant's cars was started south from its northern terminus, and about that time the motorman discovered that the headlightwas out of order. It could not be repaired en route, and the crew intended to obtain another car at Thirty-First street. Before reaching Thomas street it became dark, and the three rows of electric lamps inside the car, as well as the sign boxes on its front and sides, were lighted. At about 9:45 o'clock, daylight saving time, George McElroy and Lydia McElroy, his wife, while crossing Crawford avenue from the northeast corner of Thomas street, were struck by the car, and, as the result of the injuries he then received, McElroy died on the following day.

The rate of speed at which the car was moving at the time of the accident is disputed. Several witnesses who appeared on behalf of appellee testified that the car was running from 25 to 35 miles an hour. The motorman fixed the speed at 15 miles an hour, but admitted that it might have been somewhat greater. One of appellant's inspectors of equipment testified that the car could attain a maximum speed of 24 miles per hour.

It appears from the evidence offered on behalf of appellee that immediately prior to the accident two women, accompanied by a third with an infant in her arms, crossed from the northwest corner of Crawford avenue and Thomas street to the southwest corner of the same intersection; that the two women, before they entered the roadway, looked to ascertain whether a street car was approaching, but discovered none; that McElroy and his wife looked up and down Crawford avenue before they proceeded to cross the street; that the street car bell was not rung, nor were the brakes applied until after the accident; that the car ran approximately 150 feet after striking McElroy and his wife, and came to a stop about 50 or 60 feet south of Thomas street.

Appellee offered, and there was admitted over appellant's objection, an ordinance passed by the city council of the city of Chicago on December 28, 1914, which amended section 2210 of the Chicago Code of 1911, as amended on May 5, 1913. The amended ordinance, among other things, provides that every street car while being operated at night shall be equipped with a brightly lighted headlight.

The motorman, who was called by appellant, testified that when his car approached Thomas street he saw three women walking east in that street; that he slowed down to permit them to cross, and rang the bell; that he then noticed McElroy and his wife, who were going west in Thomas street; that when the car was about 50 feet from them they stopped in the north-bound track in Crawford avenue, and were looking toward the car; that he thought they were going to permit the car to pass, and he applied the power; that when the car was about 10 or 15 feet from them they darted in front of it; that he immediately applied the emergency brake, but was unable to stop the car before it struck them; and that the car ran about its length after the collision. Another witness in behalf of appellant testified that, when McElroy and his wife were about 9 feet from the car, they started to cross the track on a ‘kind of a trot,’ and were struck; and that the car came to a stop with the rear 10 feet in Thomas street. Other testimony is to the effect that Crawford avenue and the intersection in question were well lighted when the accident occurred.

Appellant insists that recovery is barred by the contributory negligence of appellee's intestate, and that it follows, from the decision in Mirich v. Forschner Contracting Co., 312 Ill. 343, 143 N. E. 846, 33 A. L. R. 1, that the question is open to review by this court. It was there decided that in an action at law, tried by a jury, where the evidence is conflicting, and that for the plaintiff unquestionably tends to establish a cause of action, the Appellate Court is not authorized, by section 120 of the Practice Act (Laws 1907, p. 468), to reverse a judgment for the plaintiff and make a finding of facts without remandment, for such procedure would be a deprivation of the right of trial by jury guaranteed by the Constitution. That section, it was held, applies only to cases where a jury is waived in the trial court or where the trial court is justified in directing a verdict because the evidence does not tend to establish a cause of action. So applied, the statute does not deprive a party of his constitutional right to a trial by jury. But it was not decided, nor even suggested, in Mirich v. Forschner Contracting Co., supra, that the right to a review of a trial court's judgment by any particular court was any part of a jury trial. The right of trial by jury constitutionally guaranteed does not include the right to have a review of the facts by this court. Sinopoli v. Chicago Railways Co., 316 Ill. 609, 147 N. E. 487.

[3] Section 122 of the Practice Act as amended by Laws of 1909, p. 304, provides:

‘The Supreme Court shall re-examine cases brought to it by appeal or writ of certiorari as provided in this act, from the Appellate Courts, as to questions of law only; and in the cases aforesaid, no assignment of error shall be allowed calling in question the determination of the inferior or Appellate Courts upon controverted questions of fact therein.’

This section is consistent with section 2 of article 6 of the Constitution of 1870, and is valid. Lake Shore & Michigan Southern Railway Co. v. Richards, 152 Ill. 59, 38 N. E. 773,30 L. R. A. 33. The General Assembly has the power to make the decisions of the Appellate Courts final on questions of fact. Illinois Central Railroad Co. v. Larson, 152 Ill. 326, 38 N. E. 784;Sinopoli v. Chicago Railways Co., supra. Whether an injured person is guilty of contributory negligence is a question of fact under all the circumstances of the case. Loftus v. Chicago Railways Co., 293 Ill. 475, 127 N. E. 654;Chicago Union Traction Co. v. Jacobson, 217 Ill. 404, 75 N. E. 508. In an action to recover damages for personal injuries, every controverted question of fact is determined by the judgment of the Appellate Court which affirms the judgment of the trial court, and only questions of law can be considered here. Mattice v. Klawans, 312 Ill, 299, 143 N. E. 866;Schubert v. Patera, 310 Ill. 419, 141 N. E. 825. In the instant case the questions of negligence and contributory negligence were controverted questions of fact. The question whether appellee's intestate was guilty of contributory negligence was properly submitted to the jury. The jury's verdict was approved by the trial court, and that court's judgment was affirmed by the Appellate Court. Hence the question of contributory negligence is not before this court for consideration or determination.

Appellant further contends that prejudicial error was committed in the admission of the ordinance requiring brightly lighted headlights, because the city's power to enact and enforce such a police regulation was abrogated by the transfer to the Public Utilities Commission of all police regulation of street...