Springfield Consol. Ry. Co. v. Puntenney

• Decision Date: 25 October 1902
• Parties: SPRINGFIELD CONSOL. RY. CO. et al. v. PUNTENNEY.
• Court: Illinois Supreme Court

200 Ill. 9

65 N.E. 442

SPRINGFIELD CONSOL. RY. CO. et al.

v.PUNTENNEY. ^*

Supreme Court of Illinois.

Oct. 25, 1902.

Appeal from appellate court, Third district.

Action by Eleanor Puntenney against the Springfield Consolidated Railway Company and another. From a judgment of the appellate court (101 Ill. App. 95) affirming a judgment for plaintiff, defendants appeal. Affirmed.

Bluford Wilson and Philip Barton Warren, for appellants.

T. E. Lyon and James M. Graham, for appellee.

CARTER, J.

The appellee, Eleanor Puntenney, recovered a judgment in the Sangamon circuit court against the appellants, the Springfield Consolidated Railway Company and the Springfield Transfer Company, for damages for personal injuries which she received in a collision between a street car of said railway company and a cab of the transfer company, in which she was being conveyed as a passenger. The appellate court affirmed the judgment, and the defendants have brought the record to this court for review on errors of law.

The declaration, after setting forth the duty of the defendants,-of the transfer company to safely carry the plaintiff as a passenger, and of the street car company to run its cars along the street with due care and caution to avoid injuring others,-then charged, in substance, that the transfer and railway companies did not regard their said duties, but so carelessly, unskillfully, and negligently conducted themselves that, by and through the negligence and default of their servants, and for want of due care and caution in the performance of their duties, the cab of the transfer company in which plaintiff was being conveyed, and while she was in the exercise of due care, etc., was, by reason of the negligence of said transfer and railway companies, run into with great force and violence by a car of said railway company which was then and there running at a great rate of speed, to wit, a speed of 15 miles an hour, ‘by means whereof’ the plaintiff was violently thrown against the side of the cab, and was severely cut and bruised, and her spinal cord and nervous system were injured, and that she suffered permanent injuries, etc. The transfer company has filed no briefs in this court, but, in elaborate briefs and argument, the railway company insists that as against it the judgment is erroneous, and that the injury was caused solely by the negligence of the driver of the cab, who was the servant of the transfer company, and that there was no evidence tending to prove negligence on its part. No contention is made that appellee was guilty of any contributory negligence in the matter. The railway company contends that the only charge of negligence in the declaration against it is that it was at the time running its car at a great rate of speed, to wit, 15 miles an hour, and that the trial court erred in not instructing the jury to that effect, and that the plaintiff could not recover against it for any other act of negligence. The allegation of negligence in the declaration was not as specific and clear as it should have been, but no demurrer was interposed, and it was sufficient to form an issue upon and to support a verdict. The allegation in the count cannot, by any reasonable construction, be confined to a charge of negligence in running the car at an unusual or a dangerous rate of speed. It is much more general. The speed of the car is stated as merely descriptive of one of the conditions existing at the time which contributed to the injury. As the charge of negligence was general, and there was evidence tending to prove that the motorman could, by proper care and caution, have stopped the car on the crossing before striking the cab, after he saw that it was approaching the crossing, and that the driver did not appear to notice the car, it is clear the court decided correctly in not instructing the jury on this point as requested by the railway company.

The point is also made that the court erred in not instructing the jury to find the railway company not guilty. The ruling of the court was correct. There was sufficient evidence to go to the jury on the question whether the motorman used due care to bring the car under control and to stop it after he saw the approaching cab, and thus to prevent the collision, as well as upon the question of undue speed.

The objection is also made that the court, in instructions given at the instance of the plaintiff, referred to the negligence necessary to be proved as ‘negligence as charged in the declaration,’ without telling them what negligence was charged, or what negligence the evidence had any tendency to prove. It is a sufficient answer to say that, if this was error, it was participated in by the defendants as fully as by the plaintiff. Many of the instructions asked and given on behalf of the railway company contained the same alleged defect now complained of.

The railway company asked the following instruction: ‘(11) The court instructs the jury that the plaintiff has filed her declaration, containing one count, which states her cause of action; that in and by said declaration she charges both the defendants with negligence causing said injury; that the jury may find one or both of the defendants guilty or not guilty, as the jury may determine from all the evidence in the case; that, before the jury can find the defendant the Springfield Consolidated Railway Company guilty, they must believe from a preponderance of the evidence that the said Springfield Consolidated Railway Company is guilty of the negligence charged against it in said declaration; that the injury, if any, sustained by the plaintiff, was a natural...