Sinopoli v. Chicago Rys. Co.

• Decision Date: 24 April 1925
• Docket Number: 16485.,Nos. 16322,s. 16322
• Citation: 316 Ill. 609,147 N.E. 487
• Parties: SINOPOLI v. CHICAGO RYS. CO. et al.
• Court: Illinois Supreme Court

316 Ill. 609

147 N.E. 487

SINOPOLI

v.CHICAGO RYS. CO. et al.

Nos. 16322, 16485.

Supreme Court of Illinois.

April 24, 1925.

Error to Appellate Court, First District, on Appeal from Circuit Court, Cook County; E. M. Mangan, Judge.

Action by Joseph Sinopoli against the Chicago Railways Company and others. Judgment for plaintiff was affirmed by Appellate Court, and defendants bring error and certiorari.

Reversed and remanded.

Brown, Fox & Blumberg, of Chicago (John R. Guilliams, Charles Le Roy Brown, Frank L. Kriete, and Joseph D. Ryan, all of Chicago, of counsel), for plaintiffs in error.

Finn & Miller, of Chicago (C. Helmer Johnson, of Chicago, of counsel), for defendant in error.

DUNN, J.

The Appellate Court affirmed a judgment of the circuit court of Cook county for $2,500 in favor of Joseph Sinopoli against the Chicago Railways Company and others, operating as the Chicago Surface Lines, and a writ of certiorari was granted them for a review of the record. This is No. 16322. They have also sued out a writ of error, which is No. 16485, and the two cases were argued and have been submitted together.

The cause of action grew out of an injury received by the plaintiff in alighting from a street car operated by the defendants in the city of Chicago. The declaration alleged that the defendants were operating the car along Halsted street, and when it reached the intersection of Thirty-Ninth street caused it to be stopped for the purpose of allowing passengers to alight, and that while the plaintiff was in the act of alighting from the car the defendants negligently caused it to be started, whereby the plaintiff was thrown to the pavement and injured. The contention of the defendants is that, when the car was a short distance north of Thirty-Ninth street, the plaintiff asked the motorman to let him off so that he could catch a Thirty-Ninth street car, which was then rounding the curve from Halsted street east on Thirty-Ninth; that the motorman opened the door a few feet north of Thirty-Ninth street, and when the car's speed was reduced, but while it was still in motion, the plaintifff stepped off the car and fell. The evidence was contradictory. The testimony of the plaintiff and his two witnesses who testified as to the occurrence was that after the car stopped the motorman opened the door, the plaintiff got down on the step, and as he was stepping off the car it started with a jerk and threw him on the pavement, while the testimony of the motorman and another witness for the defendants tended to show that the facts were as claimed by the defendants.

[1][2] The car was a pay-as-you-enter car, and the plaintiff offered in evidence a rule of the defendants which provided that ‘the front exit door on payee cars must not be opened until car has stopped and will be closed before car starts.’ The rule was admitted over the defendants' objection, and it is insisted that its admission was erroneous. The only negligence charged in the declaration was the starting of the car after it had stopped, while the plaintiff was in the act of alighting. To sustain this charge it was necessary for the plaintiff to prove that the car had stopped before the plaintiff began to get off. The rule had no tendency to establish this fact. The fact that the motorman had opened the door did not tend to prove that the car had stopped, though it was a violation of the rule to open it before stopping. If it had been negligence for the motorman to open the door before the car stopped, such negligence would have had no connection with the injury to the plaintiff, who got off after the car stopped. Rules of a carrier of passengers as to the conduct of its employees may be admissible in evidence where their violation is the negligence complained of as causing the injury, or where they tend to prove that the defendant is guilty of the negligence complained of, or as evidence tending to show an admission that the exercise of due care for the safety of its passengers requires the observance of the conduct prescribed by the rules, but, where they have no such tendency, evidence as to the rules is not competent. The rule was not admissible, for whether the door was opened before or after the car stopped made no difference in a case where the negligence is charged to have occurred after the car stopped; and the other part of the rule, which requires the closing of the door before the car starts, is irrelevant, because the closing of the door before starting the car could have had no tendency to prevent injury to the plaintiff, who was outside the door, standing on the step, in the act of stepping to the ground.

The Appellate Court held the rule competent as bearing on the credibility of the witnesses on the question whether the motorman opened the door while the car was in motion or not till after it stopped. The rule was not affered by the plaintiff for any such purpose. It was offered as evidence in chief, when there was no question of the credibility of witnesses. If the only reason the rule was competent was on the question of the credibility of witnesses, it was then clearly incompetent. The defendants afterward introduced testimony on this question which contradicted that introduced by the plaintiff The Appellate Court bases its opinion on the proposition that it is more probable that the motorman would obey the rule than that he would disobey it. If this were so, then the defendants ought to be permitted to show that the motorman was an exceedingly careful man, and particularly so about the observance of this rule, and the plaintiff then should be permitted to contract this evidence, thus diverting the minds of the jurors from the issue of the negligence charged, to the collateral question of the motorman's habit as to observing the rule. In Chicago, Burlington & Quincy Railroad Co. v. Lee, 60 Ill. 501, where the negligence charged was the failure to give a crossing signal as the train approached the crossing where a fatal accident occurred, evidence was introduced to show such failure, that trains had passed the crossing at other times without giving a signal. The judgment was reversed for admitting the evidence; the court saying:

‘From the fact of omitting to ring the bell at any previous time, no reasonable inference could be drawn that it was not rung on the occasion in question.’

In Peoria & Pekin Union Railway Co. v. Clayberg, 107 Ill. 644, the defendant sought to show that the deceased was not observing due care for his own safety at the time of the accident by proving that before the time he was in the habit of jumping on trains, but the evidence was held inadmissible; its effect clearly being to raise a collateral and immaterial issue. In West Chicago Street Railroad Co. v. Torpe, 187 Ill. 610, 58 N. E. 607 (an action for negligence resulting in death), the main controversy on the trial was over the speed of the train which caused the injury at the time the deceased tried to board it. The testimony varied from very slowly to very rapidly, and the court permitted the plaintiff to show that the railroad company had a custom of stopping its cars near the point where the accident occurred. It was held to be prejudicial error to permit the plaintiff to corroborate his witnesses, who had testified on that question, by proving that at other times trains ran slowly or stopped at this particular place for the purpose of receiving passengers. These cases did not involve rules, but they did involve customs or habits, which were of as much probative force as rules in determining probabilities, and they hold that evidence as to such matters is incompetent.

[3] The plaintiffs in error contend that it was error for the court to instruct the jury that ‘it is the duty of a common carrier of passengers to exercise the highest degree of care reasonably consistent with the mode of conveyance adopted and the practical operation of its road, to secure the safety of its passengers.’ The instruction is a correct statement of the rule of law as to the degree of care which the defendants owed to their passengers, but the objection made to it is that it declared the duty of a carrier much more broadly than any breach of duty that was alleged in the declaration; that the jury were told by it that the carrier was under a duty to exercise the highest degree of care, in every respect, to secure the safety of its passengers; and that therefore the carrier would be liable for any breach of duty to secure the safety of its passengers, regardless of whether that breach was alleged or not. The instruction stated abstractly the duty of the defendants without attempting to make a direct application of it to the particular facts. The particular facts alleged were that the defendants, having stopped the car to allow passengers to alight, negligently started it while the plaintiff was alighting, causing him to be thrown down and injured, and the jury were instructed, at the request of the defendants, by instruction No. 25, that these were the allegations of each count of the declaration, and that they would not be authorized or warranted in determining whether the defendants were guilty of any negligence excepting such as was charged against them in the plaintiff's declaration as set forth in that instruction. The abstract instruction therefore could not have misled the jury into believing that they might base their verdict on the opening of the door of the car or any other negligence than that alleged.

[4] In addition to the general assignment that the Appellate Court erred in not sustaining each of the errors assigned in the Appellate Court, the plaintiffs in error have specifically assigned that the Appellate Court erred in not reversing the judgment of the circuit court because the latter court erred in refusing to hold that the verdict was manifestly contrary to the weight of the evidence, and in refusing to grant a new trial to the defendants, and that ...