Savage v. Chicago & J. Elec. Ry. Co.

• Decision Date: 19 February 1909
• Citation: 87 N.E. 377,238 Ill. 392
• Court: Illinois Supreme Court
• Parties: SAVAGE v. CHICAGO & J. ELECTRIC RY. CO.

238 Ill. 392

87 N.E. 377

SAVAGE

v.CHICAGO & J. ELECTRIC RY. CO.

Supreme Court of Illinois.

Feb. 19, 1909.

Apeal from Appellate Court, Second District, on Appeal from Circuit Court, Will County; A. O. Marshall, Judge.

Action by Dominik Blasinouski against the Chicago & Joliet Electric Railway Company; John H. Savage, administrator, being substituted as plaintiff on Blasinouski's death. From a judgment of the Appellate Court for the Second district, affirming a judgment for plaintiff, defendant appeals. Affirmed.

E. Meers, for appellant.

Barr, Barr & Barr, for appellee.

CARTWRIGHT, C. J.

On April 15, 1907, the appellant, Chicago & Joliet Electric Railway Company, was operating a street car line in the village of Rockdale, in Will county. At about 11 o'clock at night Dominik Blasinouski came out of a saloon with a can of beer at the intersection of Moen and Midland avenues, in the village, and while crossing over the street car tracks was struck by a car and thrown a considerable distance on the street, causing a fracture of his skull and a broken clavicle. He was taken to a hospital, and while there was paid $50 and signed with his mark a release of any claim against appellant. Afterward he brought suit in the circuit court of Will county against appellant to recover damages for his injuries, and on July 26, 1907, filed a declaration containing two counts, in which he alleged that he was in the act of crossing the street car tracks with all due care for his own safety when he was struck by the car and injured. The first count charged the defendant with carelessness and negligence generally in driving and managing the car, and the second charged that the car was operated at a reckless and dangerous rate of speed in the nighttime, and no gong or bell was sounded. The plaintiff died in January, 1908, and the appellee, John H. Savage, having been appointed administrator, was substituted as plaintiff. The necessary amendments of the declaration were made, and the cause was tried, resulting in a verdict for the plaintiff for $3,000. Upon the hearing of a motion for a new trial the court required the plaintiff to remit $1,500, and, the remititur having been entered, a new trial was denied. Judgment was entered for $1,500, and the Appellate Court for the Second district affirmed the judgment.

The argument in support of the assignment of errors is devoted to the two propositions that the trial court erred in refusing to direct a verdict of not guilty and in instructing the jury. It is urged that the court ought to have directed a verdict of not guilty, both because the evidence did not show negligence on the part of the defendant, and because the deceased was guilty of negligence which barred a recovery. In ruling on the motion the court was bound to assume that the evidence favorable to the plaintiff was true, and on that assumption the facts were as follows: A man was waiting at the street corner to take the car and was about three feet from the track. He signaled the motorman to stop by holding up his hand, but the car passed him at a high rate of speed. There was no one on board the car but the motorman and conductor, and it was running somewhere from 12 to 15 miles an hour. The deceased passed the witness just before the car reached him, and as he stepped on the track was struck by the car and was picked up from 50 to 60 feet from the place where he was struck and 23 feet from the street car track, which indicated great speed. The motorman was unable to stop the car until it had reached the middle of the block. A witness, who was standing on the street at a place where he would have heard a...