Potts v. Chicago City R. Co.

• Decision Date: 20 December 1887
• Parties: POTTS v. CHICAGO CITY RY. CO.
• Court: U.S. District Court — Northern District of Illinois

33 F. 610

POTTS v. CHICAGO CITY RY. CO.

United States Circuit Court, N.D. Illinois.

December 20, 1887

Mr Latham, for plaintiff.

Mr Hardy, for defendant.

DYER J., (charging jury.)

This is a suit brought by the plaintiff to recover damages on account of a personal injury sustained by him while riding as a passenger on one of the cars of the defendant company, on the twenty-ninth day of July, 1885. There are some facts in the case which are undisputed. The train was coming north on State street, and consisted of the grip car, which was in advance, the State-street car attached to the grip car, and the Archer-avenue car in the rear. The plaintiff took the State-street car at or near his residence, on State street and the concurrent testimony of the witnesses is that he was seated in the last seat of that car, on the east side of the car, with one passenger between him and the end of the seat. Soon after he took passage on the car, the curtains of the car were drawn down and fastened, on account of the weather and were in that situation when the accident occurred. A horse and wagon were standing in front of a store on the east side of State street, between Fourteenth and Fifteenth streets, as the cars approached, and, in some manner, the circumstances of which you are to consider, as the train passed, the horse came in contact with the middle car in the train, and one of the shafts of the wagon struck the plaintiff with such violence as to cause the injury complained of.

The ground upon which a recovery is sought by the plaintiff is negligence of the defendant company. Necessarily, to entitle the plaintiff to recover, he must show some neglect of duty on the part of the employes, or some one of the employes, of the defendant, in charge of the train. And when I say neglect of duty, I mean such negligence, or want of care, as would make the defendant liable to the plaintiff, within the rule on the subject, which I shall presently state to you. There is no question of contributory negligence on the part of the plaintiff. Having taken passage on the train, and paid his fare, he had a lawful right to be where he was in the car; and as the curtains were down, preventing him from having a view of the east side of the street, there was nothing done by him contributing to the accident, and nothing he could do so far as he had knowledge of what was transpiring, and so far as is shown in the circumstances of the affair, to avoid the accident. He was therefore free from fault. It was the duty of the conductor of the train to protect the passengers in the car from the storm which was prevailing at the time, by making use of the curtains of the car, as such protection. If necessity existed, on account of the rain, to drop the curtains, then the act of putting them down so that passengers should not be exposed to the storm was entirely proper, and, under such circumstances, negligence would not be imputable to the defendant on account of that act, even though it prevented the passengers from having a view of the sides of the streets.

I have said that proof of negligence is essential to a recovery by the plaintiff. It has been claimed by his counsel that proof of the accident and resulting injury is alone sufficient to raise a presumption of negligence, or to make what is called a prima facie case, and that then the burden of proof shifts, casting upon the defendant the duty of showing that it was not guilty of negligence. For reasons which were stated when the point arose, I do not think that rule applicable to such a case as this. The burden of proof to show negligence is upon the plaintiff. It devolves upon him to satisfy you by the fair weight of the evidence that the injury to the plaintiff was caused by the negligence of those in charge of the train, or some one of the employes controlling its movements. This must be made to appear by a preponderance of credible testimony, to justify a verdict requiring the defendant to pay damages. Liability by no means arises in all cases from the mere happening of an accident. Accidents occur, and are sometimes unavoidable, even though a party has fulfilled his whole duty in the circumstances in which he is placed. It is only when the accident and the resulting injury are traceable to the omission of some legal...