South Chicago City Ry. Co. v. Kinnare
| Citation | 216 Ill. 451,75 N.E. 179 |
| Parties | SOUTH CHICAGO CITY RY. CO. v. KINNARE. |
| Decision Date | 23 June 1905 |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Appellate Court, First District.
Action by Frank T. Kinnare, as administrator of Paul Christensen, deceased, against the South Chicago City Railway Company. From a judgment of the Appellate Court (117 Ill. App. 1) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.
Rehearing denied October 11, 1905.
James W. Duncan and C. Le Roy Brown, for appellant.
Wing & Wing and James C. McShane, for appellee.
On the ground that servants of the appellant company negligently caused the death of Paul Christensen, the appellee, as administrator of his estate, recovered in the circuit court of Cook county a judgment in the sum of $5,000. The Appellate Court for the First District affirmed the judgment, and the cause is here on a further appeal.
After the expiration of more than two years from date of the alleged negligence the appellee presented an additional count to his original declaration. The appellant company interposed a plea of the statute of limitations, to which a demurrer was sustained-erroneously, as it insists. The original declaration contained one count. The negligence alleged therein was that ‘the defendant, through certain of its servants then and there in charge and control of one of its said electric street cars being operated by it upon said street railway as aforesaid, then and there so negligently, carelessly, and improperly ran, managed, and operated said street car that said street car thereby then and there ran against and struck the said Paul Christensen and knocked him off his bicycle upon the ground, and he was thereby then and there so seriously and permanently injured that he died, as a result of his said injuries, a short time afterwards.’ The negligence charged in the additional count was that the appellant company ‘so negligently, carelessly, and improperly ran, managed, and operated said street car that, as a direct result and in consequence thereof, the said Paul Christensen was brought in collision and contact with said street car, and was thereby then and there knocked off his said bicycle on to the ground there, and was thereby then and there so seriously injured that he died as a result of his said injuries.’ The negligence charged in the original count and that charged in the additional count are the same, namely, the negligent, careless management and operation of the street cars. The mode or manner in which such alleged negligence caused the death of appellee's intestate is somewhat differently stated. The cause of action is the thing done or omitted to be done, from which the right of action arose (Swift & Co. v. Madden 165 Ill. 41, 45 N. E. 979;Illinois Central Railroad Co. v. Campbell, 170 Ill. 163, 49 N. E. 314); and as to this the allegations of the original and additional counts are not different. There was no error in sustaining the demurrer to the plea of the statute of limitations.
The refusal of the trial court to instruct the jury, as requested by the appellant company, to return a peremptory verdict in its favor, is urged as ground of reversal. On the 24th day of May, 1896, at about 2 o'clock in the afternoon, the deceased, man aged about 36 years, and one Peter Brask, a relative, were riding their bicycles northward along the roadway on the east side of Stony Island avenue, in the city of Chicago. This avenue runs north and south, and the appellant company maintained a double line of street car tracks in and along the avenue. A horse drawing a buggy was being driven south on the roadway on the east side of the avenue, and Brask, who was riding slightly in advance of the deceased, turned to the right in order to pass between the buggy and the curb of the roadway. The deceased turned to the left, and while he was on the west side of the buggy, and Brask to the east thereof-the buggy being between them-a train of street cars, consisting of a motor car and a trailer, which was operated and controlled by employés of the appellant company was driven at a high rate of speed northward along the east track in the avenue, and passed them. The bicycle on which the deceased was riding came in contract with the side of one of the cars, and he was thrown from his bicycle to the pavement of the street, and sustained injuries which resulted in his death some days later. The collision occurred between Sixty-Ninth and Seventieth streets, and about 50 feet north of Sixty-Ninth Place, which intersects Stony Island avenue on the western side thereof. The space between the eastern rail of appellant's track and the curb of the street was 17 feet. Two feet of this space next immediately east of and adjoining the rail on the east was filled with cinders and slag, and was slightly lower than the roadway of the street, from which it was divided by a wooden plank or curb. The roadway of the street between the cinders and the curb was of a width of not exceeding 15 feet, and was paved with wooden blocks. The buggy was moving along the middle of this roadway. The sides of the cars of appellant's train extended, as variously estimated, from 16 1/2 to 18 inches over the cinders and slag. The space between the buggy and the sides of the cars was about 5 feet. The deceased was in this narrow space when the train of appellant's cars dashed along the track at a speed of from 12 to 15 miles per hour. The evidence fully justified the view that neither of the bicyclists knew the train was in their rear. No warning was given of the approach of the train, nor was the speed of the train slackened in any degree. The bicyclists, when within 10 or 15 feet of the buggy, turned to the right and left, respectively, and the appellant's train was...
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