Star Brewery Co. v. Houck

• Decision Date: 23 October 1906
• Citation: 222 Ill. 348,78 N.E. 827
• Parties: STAR BREWERY CO. v. HOUCK.
• Court: Illinois Supreme Court

222 Ill. 348

78 N.E. 827

STAR BREWERY CO.

v.HOUCK.

Supreme Court of Illinois.

Oct. 23, 1906.

Appeal from Appellate Court, Fourth District.

Action by Josephine Houck, as administratrix, etc., against the Star Brewery Company. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Affirmed.L. D. Turner, for appellant.

Wise & McNulty and William P. Launtz for appellee.

FARMER, J.

This is an appeal from a judgment of the Appellate Court affirming a judgment of the circuit court for $2,500 against appellant for negligently causing the death of appellee's intestate, a boy 10 years and 10 months old. The deceased boy, while engaged in playing a game of ‘tag’ in one of the public streets of East St. Louis with other boys, was driven upon and run over by a team hitched to one of appellant's loaded brewery wagons, and thereby killed. The team was in charge of, and driven by, appellant's servant. The evidence, as to the circumstances of the boy's being run over, was conflicting. Appellee's evidence tended to show that the boy was standing in the street a few feet from the sidewalk, with his face turned in the opposite direction from which the wagon was approaching, but that he was in plain view of the driver for a distance of 85 feet if the driver had been observing where he was driving. Appellant's evidence tended to show that the boy suddenly and unexpectedly ran in front of and against the horses, and was thereby knocked down and run over. At the conclusion of plaintiff's evidence, and again at the conclusion of all the evidence, appellant moved the court to direct a verdict in its favor, and the rulings of the court in denying these motions are assigned as error. To justify a reversal on those grounds would require us to hold that there is no evidence in the record fairly tending to support the plaintiff's cause of action. This cannot be said of the evidence in this record. The trial court properly submitted to the jury to determine the question of the weight and credibility of the testimony, and their verdict having been approved by the judgment of the circuit court and that judgment having been affirmed by the Appellate Court, we cannot weigh the testimony, but can only examine and determine whether there was any evidence fairly tending to prove the plaintiff's case.

It is contended by appellant that the deceased boy could have easily seen and heard the approaching wagon if he had been exercising reasonable and ordinary care, and that his negligent conduct caused or contributed to his death, and brings the case within the rule where negligence is held to become a question of law. It was held in Chicago West Division Railway Co. v. Ryan, 131 Ill. 474, 23 N. E. 385, that even though a person's own negligence exposed him to risk, if the proximate cause of his injury was the result of the defendant's failing to use ordinary care to avoid injuring him after becoming aware of his danger, the defendant would be liable. It was also held in that case that it was not necessary to a recovery that the defendant should have actually known of the danger to which the injured party was exposed, but that he would be liable if he has ‘sufficient notice or belief to put a prudent man on the alert, and he does not take such precautions as a prudent man would take under similar notice or belief.’ See, also, Lake Shore & Michigan Southern Railway Co. v. Bodemer, 139 Ill. 596, 29 N. E. 692,32 Am. St. Rep. 218. In determining the question whether deceased was guilty of contributory negligence it was proper for the jury to take into consideration his age, intelligence, experience, and ability to understand and comprehend danger and to care for himself. Illinois Iron & Metal Co. v. Weber, 196 Ill. 526, 63 N. E. 1008. We think the court properly denied appellant's motion to direct a verdict in its favor.

Three counts of the declaration set up the following ordinance of the city of East St. Louis:

‘496. No person shall ride or drive any horse, mule or other animal in or through any street or avenue or alley of the city of East St. Louis with greater speed than at the rate of six miles an hour, nor shall, in turning the corner of any street, avenue or alley in the city, ride or drive any such animal with greater speed than at the rate of four miles an hour, nor shall willfully or heedlessly ride or drive any such animal so that the same, or any vehicle attached thereto, shall come into collision with any other animal or vehicle, or strike against any person, under a penalty, in each and every case, of not less than $5 nor more than $100.’

One of the counts charges that the team was driven at a high rate of speed in excess of that allowed by the ordinance; another one, that appellant, by its servant, willfully and heedlessy drove said wagon and team of horses in a willful and heedless manner; and another, that defendant, by its servant, carelessly and negligently drove said team and wagon in a careless and negligent manner. The court permitted appellee to introduce the ordinance in evidence over the objections of appellant, and afterwards refused to exclude it from the consideration of the jury upon appellant's motion, and it is here urged that there was no testimony that appellant's servant violated the ordinance, and that the court erred in allowing it to go to the jury. A number of witnesses testified on...