Rack v. Chicago City Ry. Co.

• Decision Date: 21 April 1898
• Citation: 50 N.E. 668,173 Ill. 289
• Parties: RACK v. CHICAGO CITY RY. CO.
• Court: Illinois Supreme Court

173 Ill. 289

50 N.E. 668

RACK

v.CHICAGO CITY RY. CO.¹

Supreme Court of Illinois.

April 21, 1898.

Appeal from appellate court, First district.

Trespass on the case by Hermanus T. G. Rack, by Theodore P. H. Rack, his next friend, against the Chicago City Railway Company, for personal injuries. From a judgment of the appellate court (69 Ill. App. 656) affirming a judgment on a verdict directed for defendant, plaintiff appeals. Affirmed.

Burnham & Baldwin, for appellant.

W. J. Hynes and H. H. Martin, for appellee.

CRAIG, J.

This was an action of trespass on the case, brought by Hermanus T. G. Rack, by his next friend, in the circuit court of Cook county, to recover damages on account of personal injuries sustained, he being at the time a boy about four years and seven months old. The accident occurred on the 8th day of August, 1893, on Fifty-Fifth street, west of the crossing of Fifty-Fifth street and Kimbark avenue, in the city of Chicago. The defendant's cable trains at that point run east and west on Fifty-Fifth street. Plaintiff and another small boy were first seen by the gripman of the cable train, which was approaching from the east, standing in the roadway of Fifty-Fifth street, south of the east-bound cable track, 2 or 3 feet from the curbstone. The grip car at that time was about 150 feet away, and was running at the rate of about 10 miles an hour. The distance from the curbstone to the east-bound track was estimated at 12 feet. When the grip car was 30 or 40 feet away, the elder boy started to run north across the street, and when he had gone about 15 feet the plaintiff started to run across, directly in front of the approaching train. The gripman shouted as soon as the older boy started, and also at plaintiff when he started. He put on the brake, and reversed the lever, when the first boy started, but could not stop in time to save the smaller boy. One witness testified the plaintiff reached the track, stubbed his toe, and fell when the train was about 20 or 30 feet away; others, that he ran against the corner of the grip car and fell, or was knocked down by the car. One of his feet was so crushed and lacerated that it became necessary to amputate it at the joint, taking off all the toes on that foot, leaving only the stump. After striking the child, the train ran the length of the grip car and about half the length of the next car, or about 34 or 35 feet, before it came to a stop. At the close of the evidence, on defendant's motion, the court instructed the jury to find a verdict for the defendant. A motion for a new trial was made and overruled, and judgment was entered upon the verdict for costs in favor of the defendant. The plaintiff appealed to the appellate court for the First district, which affirmed the judgment of the circuit court. but granted to appellant a certificate of importance, and appellant asks a reversal of the judgment of the appellate court.

The only question necessary to be considered in this case is embraced in appellant's third assignment of error, viz. did the trial court err in granting defendant's motion by instructing the jury to find the defendant not guilty? In considering the propriety of of such an instruction we have nothing to do with any question as to the preponderance of the evidence, or the credibility of the witnesses, or the force to be given to the evidence having a tendency merely to impeach the veracity of the witnesses. The only question is whether any evidence was given which, if true, would have tended to support a verdict for plaintiff. Railway Co. v. Dunleavy, 129, Ill. 132, 22 N. E. 15. In Simmons v. Railroad Co., 110 Ill. 340, this court used the following language (page 346): ‘But we think the more reasonable rule, which has now come to be established by the better authority, is that when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is so insufficient to support a verdict for the plaintiff that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant.’ Pleasants v. Fant, 22 Wall. 120;Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. 322;Martin v. Chambers, 84 Ill. 579. The case of Simmons v. Railroad Co., supra, was referred to with approval by this court in Railway Co. v. O'Conner, 115 Ill. 261, 3 N. E. 501, and again in Bartelott v. Bank, 119 Ill. 271, 9 N. E. 898. The alleged cause of action set out in the declaration in the case at bar is that the Chicago City Railway Company, by its servants, so carelessly and improperly drove and managed the grip car and cable train that by and through the negligence and improper conduct of the defendant, by its servants, the plaintiff was permanently injured. There was no evidence tending to show appellee was guilty of negligence. The evidence shows that the train of which George Eighme was the grip driver, and which injured appellant, was going west on Fifty-Fifth street; that the gong was rung for Kimbark avenue; that just as the train was crossing Kimbark avenue, and when near the center of the avenue, the grip driver noticed a couple of small boys about 3 feet from the curb, on the south side of Fifty-Fifth street; that when he first saw them they were both together, standing by the curbstone, on the roadway, about 12 feet south of the south or east-bound track; that on the day of the accident the track was wet and slippery; that when the track was dry a train could be stopped in about 60 or 70 feet, but when slippery or wet it took a longer distance; that, when the car was within 30 or 40 feet from the boys, the older boy suddenly started to run across...