Ohnesorge v. Chicago City Ry. Co.

• Decision Date: 16 October 1913
• Citation: 259 Ill. 424,102 N.E. 819
• Parties: OHNESORGE et al. v. CHICAGO CITY RY. CO.
• Court: Illinois Supreme Court

259 Ill. 424

102 N.E. 819

OHNESORGE et al.

v.CHICAGO CITY RY. CO.

Supreme Court of Illinois.

June 18, 1913.

Rehearing Denied Oct. 16, 1913.

Appeal from Branch B Appellate Court, First District, on Appeal from Superior Court, Cook County; Homer Abbott, Judge.

Action by Frederick E. Ohnesorge and others against the Chicago City Railway Company. Judgment for the plaintiff in the Superior Court was reversed by the Appellate Court, which granted a certificate of importance and allowed plaintiffs to appeal to the Supreme Court. Affirmed.

James C. McShane, of Chicago, for appellants.

Franklin B. Hussey and C. Le Roy Brown, both of Chicago (Leonard A. Busby, of Chicago, of counsel), for appellee.

VICKERS, J.

Frederick E. Ohnesorge and George D. Stuart, as administrators of the estate of William A. Ohnesorge, deceased, brought an action in case in the superior court of Cook county against the Chicago City Railway Company and obtained a verdict for $2,500, on which judgment was afterwards pronounced, for damages to the next of kin resulting from the negligent killing of plaintiff's intestate. Branch B of the Appellate Court for the First District reversed the judgment below without remanding the cause, and incorporated in its judgment the following finding of facts: ‘And the court, upon the allegations and proofs in the record in this cause contained, finds that Frederick E. Ohnesorge, the father of deceased, had personal charge of deceased at the time of the accident in question, and that Frederick E. Ohnesorge was guilty of negligence which directly contributed to the injury and consequent death of the deceased.’ The Appellate Court being of the opinion that the record involves questions of law, on account of principal and collateral interests, of such importance that the case should be passed upon by this court, granted a certificate of importance and allowed an appeal, which has been perfected by the administrators, and the cause is thus brought before this court for our consideration.

The facts need only a brief statement. At the time William A. Ohnesorge was killed he was a child three years and nine months old, and resided with his father, mother, and older brother in the city of Chicago. On December 20, 1908, the father of the deceased had occasion to cross Halsted street at the intersection of Sixty-First street. At the time of the accident appellee operated a double-track railway upon Halsted street. The deceased, in company with his father, started to walk across Halsted street upon the crosswalk at the south side of Sixty-First street. Halsted street runs north and south. The deceased and his father were on the west side of Halsted street and on the south side of Sixty-First street. In going east across Halsted street it was necessary to cross the north-bound and south-bound tracks of appellee. When they came to the first track a south-bound car was standing with its rear end about even with the cross-walk, or, as some of the evidence tends to show, with its rear end a few feet north of the crosswalk.Before starting to cross Halsted street the father of deceased testifies that he looked south on Halsted street and saw the headlight of a north-bound car on the easterly or north-bound track. He thought that the car was some 800 feet south of him. The father, leading deceased by the hand, walked north far enough to pass the north end of the south-bound car that was immediately in front of him. He stepped upon the north-bound track and a north-bound car struck both the father and child. The father was severely injured and the child was killed.

[1] There is no evidence that the father made any effort to discover the approach of the north-bound car before stepping upon the easterly track. The contributory negligence of the father of the deceased being conclusively established by the finding of the Appellate Court, the only question open for consideration in this court is whether the Appellate Court properly applied the law to the facts so found.

[2] The question presented is whether the contributory negligence of a father who is in the personal control of his child at the time such child is killed by the negligent act of another is a bar to a suit brought by the personal representative for the benefit of the next of kin. Appellants' position upon this question is that the contributory negligence of the father is not a bar to the action by the administrator, since it is the settled law of this state that in a suit by a child who is merely injured, to recover damages, the contributory negligence of the father will not defeat the action brought by the child. This proposition must be conceded as sound law under the decisions of this court. Chicago City Railway Co. v. Wilcox, 138 Ill. 370, 27 N. E. 899,21 L. R. A. 76;Chicago City Railway Co. v. Tuohy, 196 Ill. 410, 63 N. E. 997,58 L. R. A. 270;Richardson v. Nelson, 221 Ill. 254, 77 N. E. 583;Perryman v. Chicago City Railway Co., 242 Ill. 269, 89 N. E. 980.

[3] Having established the proposition that the deceased child might have recovered for the injury had death not resulted, notwithstanding the contributory negligence of the father, appellants' second proposition is based on section 1 of our statute on injuries. That section is as follows: ‘Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have intitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.’ Hurd's Rev. St. 1911, c. 70.

Appellants contend that this statute gives a right of action, in case of death, in all cases where the injured party might have maintained an action for the injury had death not resulted. Appellants' construction of this statute is not without plausible reason, and there is some authority in other jurisdictions which supports the construction contended for, where the question has arisen under statutes very similar to ours. Appellants' position receives varying degrees of support. In Alabama-Southern Railway Co. v. Shipp, 169 Ala. 327, 53 South. 150;City of Birmingham v. Crane (Ala.) 56 South. 725. In Connecticut-Wilmot v. McPadden, 78 Conn. 276, 61 Atl. 1069. In Iowa-Wymore v. Mahaska County, 78 Iowa, 399, 43 N. W. 264,6 L. R. A. 545, 16 Am. St. Rep. 449;Bradshaw v. Frazer, 113 Iowa, 583, 85 N. W. 753,55 L. R. A. 258, 86 Am. St. Rep. 394. In New Hampshire-Warren v. Manchester Street Ry., 70 N. H. 362, 47 Atl. 735. In New York-Lewin v. Lehigh Valley R. Co., 52 App. Div. 70,65 N. Y. Supp. 49;Stenson v. Flick Construction Co., 146 App. Div. 66,130 N. Y. Supp. 557;McKay v. Syracuse Rapid Transit Co., 208 N. Y. 359, 101 N. E. 885. In Ohio-Davis v. Guarnieri, 45 Ohio St. 470, 15 N. E. 350,4 Am. St. Rep. 548;Wolf v. Lake Erie & Western R. Co., 55 Ohio St. 517, 45 N. E. 708,36 L. R. A. 812;Cleveland, Akron & Columbia Ry. Co. v. Workman, 66 Ohio St. 509, 64 N. E. 582,90 Am. St. Rep. 602.

Some of the above cases hold that the contributory negligence of the parent is no defense in bar of a suit by the representative of a deceased child, while others hold that the contributory negligence may be shown in mitigation of damages by deducting the share that the guilty parent would otherwise be entitled to, but that such contributory negligence would not bar the rights of other unoffending next of kin. This latter view has been taken by the Appellate Court for the Fourth District of this state in Donk Bros. Coal & Coke Co. v. Leavitt, 109 Ill. App. 385, and by the Appellate Court for the First District in Chicago City Railway Co. v. McKeon, 143 Ill. App. 598. In both of these decisions of the Appellate Court it seems to be assumed that the question is an open one in this state, and some of the decisions which have a bearing upon the question are referred to and an attempt made to distinguish them from the cases then before the court. The two Appellate Court cases above referred to and the decisions above cited from other states, together with some references to text-books, are the authorities upon which the appellants rely. On the other hand, the appellee contends that the question has been authoritatively settled by previous decisions of this court, and that the rule established in this state is in accordance with the decided weight of authority in other jurisdictions.

[4] The right to maintain an action by one who without his fault has suffered a personal injury through the negligence or wrongful act of another has always existed wherever the common law of England was in force. This right is not created by the Legislature, and our statute on injuries has nothing to do with it. Under the common law an action for personal injury did not survive the death of the person injured, and prior to the Survival Act of 1872 (Laws 1871-72, p. 108) § 123, it was the law of this state that an action for damages for personal injury abated with the death of the injured party in all cases where the death was not the result of the injury. Holton v. Daly, 106 Ill. 131. In 1853 (Laws 1853, p. 97) the Legislature passed an act, which has been in force ever since, requiring compensation for causing death by wrongful act, neglect or default, and providing that suit therefor should be brought in the name of the personal representative for the benefit of the widow and next of kin. This statute was not a survival statute. It did not continue to the personal representative the cause of action that the injured party had under the common law, but it created a new and independent cause of action never before that time recognized as existing in this state. The cause of...