Pienta v. Chicago City Ry. Co.

• Decision Date: 20 June 1918
• Docket Number: No. 12013.,12013.
• Citation: 284 Ill. 246,120 N.E. 1
• Parties: PIENTA v. CHICAGO CITY RY. CO.
• Court: Illinois Supreme Court

284 Ill. 246

120 N.E. 1

PIENTA

v.CHICAGO CITY RY. CO.

No. 12013.

Supreme Court of Illinois.

June 20, 1918.

Error to Appellate Court, First District, on Appeal from Circuit Court, Cook County; Oscar E. Heard, Judge.

Action by Andreas Pienta against the Chicago City Railway Company. Judgment for plaintiff was affirmed by the Appellate Court (208 Ill. App. 309), and defendant brings certiorari. Reversed and remanded.

Charles Le Roy Brown, of Chicago (John R. Guilliams, of Chicago, of counsel), for plaintiff in error.

Scott O. Cavette, Vincent G. Gallagher, and Ernest Messner, all of Chicago, for defendant in error.

CARTER, J.

This was an action for personal injuries brought by defendant in error in the circuit court of Cook county against plaintiff in error. On trial before a jury a verdict was found against plaintiff in error for $10,000 and judgment entered thereon. On appeal to the Appellate Court that judgment was affirmed, and the cause has been brought here on petition for certiorari.

Defendant in error was injured as the result of a collision between a street car and a wagon in which he was riding on Ashland avenue, Chicago, about noon on January 19, 1913. Ashland avenue runs north and south, and Thirty-First and Thirty-Second streets extend east and west across it, being about 800 feet apart. About 200 hundred feet north of Thirty-Second street Robinson street runs into the west side of Ashland avenue. The accident took place some 150 feet north of Robinson street. Archer avenue, running from the northeast to the southwest, intersects Ashland avenue at about Thirty-First street. Two street railway tracks occupied the center of Ashland avenue, each track being of standard gauge, 4 feet 8 1/2 inches, and the space between the tracks was about 5 feet. The space between the west, or south-bound, track and the west curb was paved with granite blocks, and was about 13 feet 7 inches wide. Plaintiff in error was at the time of the accident operating street cars on Ashland avenue on these two tracks. Defendant in error was then 18 years of age, and roomed with one Sova, who conducted a butcher shop. He worked in a motorcycle or bicycle shop, earning about $1.75 a day. His roommate at Sova's was John Ptasek, who worked in the butcher shop. On the day of the accident Ptasek was driving his employer's one-horse wagon from the place of business to a sauerkraut factory on Thirty-Seventh street. Ptasek drove the wagon on Archer avenue to Ashland avenue, where he turned south. He had asked Pienta to come with him and help handle the sauerkraut barrels. Pienta had before that assisted Ptasek on similar trips, particularly on Saturdays, when he was not engaged at his regular work in the bicycle shop. This accident took place on Saturday. On turning into Ashland avenue Ptasek drove his horse in the west, or south-bound, car track. As he approached a point about 300 feet south of Archer avenue he found that a heavy motor truck was standing diagonally across Ashland avenue in such manner that its end extended onto the south-bound track. The evidence tends to show that the driver of the truck was down at its front, apparently trying to repair it. Some of the witnesses say that the rear end of this truck was near the curb, and some testified that the front end was near the curb. Defendant in error and Ptasek testified there was not enough space between the truck and the curb for their wagon to pass between. Counsel for plaintiff in error contend that the evidence shows that there was room to drive between the truck and the west curb of Ashland avenue. When near the truck Ptasek turned his horse and wagon to the east, partly into the north-bound track, to drive around the stalled truck. From the testimony of defendant in error and Ptasek it was apparent that just about the time they started to turn onto the north-bound track they saw the north-bound car which afterwards collided with them. The testimony as to the wagon's distance from this car at the time it was driven partly onto the northbound track, as told by various witnesses, differs materially. Ptasek and the defendant in error testified that it was a long distance away, some two or three blocks, while some of the witnessestestifying for plaintiff in error said it was only from 100 to 200 feet or less south of the stalled truck. Ptasek testified he turned his wagon to the east to get around the end of the truck when he was about 100 hundred feet north of it. Defendant in error places the distance when they turned out much shorter than this, about 30 feet north of the truck. There is also a sharp conflict in the evidence as to the speed of the street car. Some witnesses for defendant in error testified as to the car going very fast and did not slack up this speed at all until after the collision, while certain witnesses for plaintiff in error testified that the car was not going more than 12 miles an hour, and the motorman says the electricity was shut off and the car was merely ‘drifting’ along at the time of the collision. All the testimony seems to agree that Ptasek drove the house and wagon onto the northbound track so that the wheels of the wagon strode the west rail of said track, then drove south until south of the stalled truck, and then started to turn out of the north-bound track over onto the south-bound track, but before the wagon had entirely cleared the north-bound track the north-bound street car struck it. There is also a question as to just what part of the wagon was first struck by the car. The testimony shows that the wagon was tipped partly over and defendant in error and Ptasek were thrown violently to the ground. Defendant in error struck on his head near or on the west curbstone of Ashland avenue and was rendered unconscious, remaining in that condition for nearly two days. While there is some dispute in the briefs as to the nature of the injury and whether it is permanent or not, we think the great weight of the testimony is to the effect that it was a serious one, requiring trepanning of his skull, and there is testimony tending to show that defendant in error was permanently injured, and that since the injury he has been subject to epileptic seizures as a result thereof. There is also evidence which tends strongly to show that the ability of defendant in error to earn a livelihood has been most seriously affected by these injuries. The testimony is also in conflict as to how far the car went before it was stopped after the collision. Some of the witnesses testified that it stopped within a distance of 30 or 35 feet, while others place it at over 100 feet. There is also a conflict in the evidence as to how fast the horse was going when Ptasek was driving around the stalled truck. Testimony on behalf of defendant in error tends to show that the horse was going at a trot, and that just after they had turned onto the north-bound track defendant in error told Ptasek to hurry up.

There is no possible way to harmonize the conflicting testimony on the material points as to just how the accident occurred, either as to the distance of the car south of the stalled truck when Ptasek started to drive over to the north-bound track, or how rapidly the car or the horse and wagon were traveling, or at what point on the wagon, near the front or rear, the car struck. All these are questions of fact, as to which, in a case of this kind, this court must be controlled by the verdict of the jury and the judgment of the trial court as affirmed by the Appellate Court. We can only examine the record so far as to enable us to determine whether there is any evidence tending to support the cause of action and whether the rules of law have been properly applied by the trial court. We cannot inquire as to the weight or preponderance of the evidence. Libby, McNeill & Libby v. Cook, 222 Ill. 206, 78 N. E. 599;Reiter v. Standard Scale Co., 237 Ill. 374, 86 N. E. 745;Hinchliffe v. Wenig Teaming Co., 274 Ill. 417, 113 N. E. 707.

Counsel for plaintiff in error argue at great length and with citation of numerous authorities that defendant in error was guilty of contributory negligence and therefore cannot recover as a matter of law. While the burden of proof is always on the plaintiff, in proceedings of this kind, to show that when the injury was received he was in the exercise of ordinary care, that question is one of fact, which must be determined by the circumstances attending and surrounding the injury. Whether the evidence tends to prove such care is a question of alw. A court can only determine adversely to the plaintiff when no other conclusion can be reasonably drawn from the uncontradicted facts and from the evidence that is favorable to the plaintiff.

‘There is no rule of law which prescribes any particular act to be done or omitted by a person who finds himself in a place of danger. In the variety of circumstances which constantly arise it is impossible to announce such a rule. The only requirement of the law is that the conduct of the person involved shall be consistent with what a man of ordinary prudence would do under like circumstances.’ Stack v. East St. Louis Railway Co., 245 Ill. 308, 92 N. E. 241,137 Am. St. Rep. 318.

Ordinarily the question of contributory negligence is one of fact for the jury. On the statement of facts in this record the question whether defendant in error was guilty of contributory negligence was properly submitted to the jury, and as the testimony on this question was not in harmony, it is plainly such a controverted question that the judgment of the Appellate Court affirming that of the trial court precludes us from considering it. Guianios v. De Camp Coal Co., 242 Ill. 278, 89 N. E. 1003;Mueller v. Phelps, 252 Ill. 630, 97 N. E. 228. This is the conclusion which must be reached on this record, regardless of whether defendant in error was equally responsible with the driver of the wagon as to any negligence in driving...