Segal v. Chicago City Ry. Co.
| Decision Date | 07 April 1927 |
| Docket Number | No. 16951.,16951. |
| Citation | 325 Ill. 43,155 N.E. 757 |
| Parties | SEGAL v. CHICAGO CITY RY. CO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Second Branch of the Appellate Court, First District, on Appeal from Superior Court, Cook County; Joseph H. Fitch, Judge.
Suit by Sol Segal, a minor, by David Segal, his next friend, against the Chicago City Railway Company. Judgment for plaintiff was reversed by the Appellate Court (216 Ill. App. 11), and plaintiff brings error.
Reversed and remanded, with directions.
James C. McShane, of Chicago, for plaintiff in error.
Busby, Weber, Miller & Donovan, of Chicago (John R. Guilliams and Frank L. Kriete, both of Chicago, of counsel), for defendant in error.
On December 14, 1915, Sol Segal, a minor eight years of age, by David Segal his next friend instituted suit in the superior court of Cook county against the Chicago City Railway Company to recover damages for personal injuries. A jury trial resulted in a verdict for the plaintiff for $12,000. Motions for a new trial and in arrest of judgment were made and overruled and judgment was rendered upon the verdict. The defendant prosecuted an appeal to the Appellate Court for the First District, and that court, on December 2, 1919, reversed the judgment of the superior court without remanding the cause, but with a finding that the railway company was not guilty of the negligence charged in the declaration. Segal v. Chicago City Railway Co., 216 Ill. App. 11. On September 4, 1925, plaintiff sued out this writ of error to the Appellate Court, alleging in his assignment of errors that the Appellate Court rendered its final judgment, made its finding of fact, and refused to remand the cause to the superior court by virtue of section 120 of the Practice Act (Smith-Hurd Rev. St. 1925, c. 110, § 119); that this section, and the judgment and finding of the Appellate Court pursuant to it, deprived the plaintiff of his right of trial by jury, abridged his privileges and immunities, denied him the equal protection of the laws, and deprived him of his property without due process of law, contrary to the provisions of the state and federal Constitutions; and that in consequence section 120 of the Practice Act is void. The defendant in error has moved to dismiss the writ of error for want of jurisdiction and has filed suggestions in support of its motion.
The question first to be determined is whether this court has jurisdiction of the writ of error. The Appellate Court, in its opinion on page 16, says:
‘We think the preponderance of the evidence is clearly against the verdict, thus necessitating, in the exercise of our powers and duty, a reversal of the judgment with a finding of fact that there was no negligence on the part of appellant.’
Plaintiff in error, in his brief and argument, states:
‘The judgment and finding of the Appellate Court were based upon the holding that the preponderance of the evidence showed that defendant was not guilty of the negligence charged, and not upon the ground that plaintiff's evidence did not tend to prove such negligence.’
The defendant in error, in the suggestions in support of its motion to dismiss, concedes that there was a trial by jury on conflicting evidence, and that the trial judge would not have been justified in directing a verdict for the defendant. It is therefore beyond controversy that in this case the evidence was conflicting and that the plaintiff's evidence tended to establish a cause of action.
[1] The Appellate Court, by reversing this judgment without remanding the cause for a new trial, deprived the plaintiff in error of his constitutional right to a trial by jury. Mirich v. Forschner Contracting Co., 312 Ill. 343, 143 N. E. 846, 33 A. L. R. 1. A constitutional question thereupon became involved in this case for the first time. Section 120 of the Practice Act provides that, if any final determination of any case, except in chancery, shall be made by the Appellate Court as the result of finding the facts concerning the matter in controversy different from the finding of the trial court, it shall be the duty of the Appellate Court to recite in its final judgment...
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