Pierson v. Lyon & Healy

• Decision Date: 03 February 1910
• Court: Illinois Supreme Court
• Parties: PIERSON v. LYON & HEALY et al.

243 Ill. 370

90 N.E. 693

PIERSON

v.LYON & HEALY et al.

Supreme Court of Illinois.

Dec. 22, 1909.

Rehearing Denied Feb. 3, 1910.

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; William H. McSurely, Judge.

Action by Clinton Pierson against Lyon & Healy and another. From a judgment for plaintiff against the defendants named, they appeal. Affirmed.Calhoun, Lyford & Sheean, for appellants.

James C. McShane, for appellee.

FARMER, C. J.

This was an action to recover damages for personal injuries, brought by appellee against appellant and the city of Chicago in the superior court of Cook county. At the close of all the evidence the court gave a peremptory instruction directing the jury to find the defendant the city of Chicago not guilty. The jury returned a verdict as directed, and also a separate verdict finding appellant guilty and assessing appellee's damages at $10,000. Motions for a new trial and in arrest of judgment were overruled, and judgment entered on the verdict. On appeal to the AppellateCourt for the First District the judgment was affirmed, and this further appeal has been prosecuted to this court.

Appellee was a conductor in the employment of the Chicago City Railway Company. On September 26, 1905, he was injured in a collision between the street car on which he was working and an auto truck owned by appellant and operated by its employé at the intersection of Prairie avenue and Forty-Third street, in the city of Chicago. Prairie avenue runs north and south, and Forty-Third street east and west. A double line of street railway tracks is located on Forty-Third street, the north track being used for west-bound, and the south track for east-bound, cars. Seventeen feet north of the north rail of the car track a raised pathway or stone walk crosses Prairie avenue east and west. Between this pathway and the car track there was a hold or depression in the street, extending about 20 feet east and west and 10 or 15 feet north and south, and being from 6 inches to 1 foot in depth. A new building was in course of construction on the northeast corner of Forth-Third street and Prairie avenue. In front of this building, on the east side of Prairie avenue and just north of the stone walk crossing it, there was an open ditch 2 or 3 feet wide and extending to within 10 or 12 feet of the west curb of Prairie avenue, which it seems had been excavated for the purpose of making water connections with the new building. Under these conditions the only means of travel for vehicles going north from Forty-Third street into Prairie avenue and going south from Prairie avenue into Forty-Third street was over that portion of the street, 10 or 12 feet wide, between the west curb of Prairie avenue and the west end of the ditch. On the day of the injury the auto truck of appellant was being driven westward along one of the car tracks in Forty-Third street. On arriving at the intersection of Forty-Third street and Prairie avenue the driver turned north. When the front wheels of the truck were near or on the crosswalkon Prairie avenue and the rear wheels in the depression in Forty-Third street the truck was stopped, as a team and wagon coming from the north on Prairie avenue had just been driven into the narrow passageway above described, through which a wagon and an auto truck could not pass at the same time. While the auto truck was in this position a west-bound open car on Forty-Third street, on which appellee was conductor, crossed Prairie avenue. Appellee had been collecting fares, and was walking back on the footboard to the rear platform of the car. He had just raised his right foot to step up on the platform when the rear end of the car came into collision with the tailage of the auto truck, and appellee's left leg was thereby caught and crushed a few inches above the ankle. There was a conflict in the evidence as to the direct cause of the collision. The testimony offered by appellant tended to prove that the tailgate of the auto truck was not clear of the car by about an inch and that the collision was caused by the car running into the truck, while five witnesses for appellee testified that after the auto truck had stopped, so that its tailgate cleared the street car track from five to six feet, it was suddenly backed by the driver against the rear end of the car that was passing at a low rate of speed. Upon this question the Appellate Court in its opinion says: ‘We think that the jury, from the evidence, might properly find that the truck went far enough north from the track to permit the car to pass by, and then stopped and backed into the car, and that such backing of the truck was the direct and proximate cause of plaintiff's injury. * * * We think that from all the evidence the jury might properly find that the defendant was guilty of negligence which was the direct cause of plaintiff's injury.’

It is contended by appellant that the court should have granted its motion to direct a verdict in its favor on the ground that there was no proof of negligence on the part of appellant, and also on the ground that the appellee was guilty of contributory negligence in riding on the footboard of the car. The evidence abundantly tended to show that the appellant's servants suddenly and without warning backed the truck against the side of the car of which appellee was conductor, and that, before starting to back it, it was standing still at a distance of five or six feet from the track. Under the repeated decisions of this court it was the duty of the trial court to submit the case to the jury, and it would have been error not to have done so.

The car on which appellee was riding at the time of his injury was an open summer car, with seats running crosswise. There was a footboard alongside the car for the purpose of enabling passengers to enter and alight from the car, and upon which the conductor passed backwards and forwards in collecting fares from passengers. It was while appellee was on this footboard, engaged in collecting fares, that he was injured, and it is contended he was guilty of contributory negligence in being on the footboard, and in not looking ahead to see if there was any danger to him while so riding. It cannot be said, as a matter of law, that in riding in the position he was when he was injured appellee was guilty of contributory negligence. The most that can be claimed is that it was a question of fact for the jury. Nor can it be said, as a matter of law, that the failure of appellee to see and anticipate the danger of injury from the auto truck was contributory negligence. If he had seen the truck standing six feet from the track, he was not obliged to anticipate that the driver would, without looking back to see if it was safe to do so, and without warning, suddenly run the truck backwards. Whether appellee was in the exercise of due care or whether he was guilty of contributory negligence...