United States Brewing Co. v. Stoltenberg

CourtSupreme Court of Illinois
Writing for the CourtMAGRUDER
Citation211 Ill. 531,71 N.E. 1081
Decision Date24 October 1904
PartiesUNITED STATES BREWING CO. v. STOLTENBERG.

211 Ill. 531
71 N.E. 1081

UNITED STATES BREWING CO.
v.
STOLTENBERG.

Supreme Court of Illinois.

Oct. 24, 1904.


Appeal from Appellate Court, First District.

Action by Henry M. Stoltenberg, as administrator of John F. McHale, against the United States Brewing Company. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Affirmed.


[211 Ill. 533]

[71 N.E. 1082]

F. J. Canty and E. E. Gray (J. C. M. Clow, of counsel), for appellant.

Alexander Sullivan (Francis J. Woolley, of counsel), for appellee.


[211 Ill. 531]This is an action on the case, brought on January 6, 1902, in the circuit court of Cook county by appellee, as administrator of John F. McHale, deceased, and against appellant to recover damages for injuries to the deceased, resulting in his death, alleged to have been caused by the negligence of the appellant. The plea of the general issue was filed. The jury returned a verdict in favor of the appellee for $5,000, and judgment was entered for that amount [211 Ill. 532]upon the verdict. Upon appeal to the Appellate Court the judgment has been affirmed, and the present appeal is prosecuted from such judgment of affirmance.

The facts are substantially as follows: John F. McHale, at the time of his death, was a little boy about four years old, and was killed on August 27, 1901, by being run over by one of appellant's wagons. The accident happened on Leavitt street, in Chicago, from 25 to 75 feet north of Huron street; Leavitt street running north and south, and being crossed by Huron street which runs east and west. A driver named Fred Fischer, a servant of the appellant, was driving the wagon, which inflicted the injury, north upon Leavitt street; and the boy was struck by the wagon after it had crossed Huron street. On the northeast corner of this street intersection is a grocery store, in front of which, and close to the curb, stood a grocery wagon without any horse attached to it, the box of which was 3 feet and 7 inches in width. Some children were playing on the street and the east sidewalk north of the wagon. It seems that a street car line formerly had its tracks in Leavitt street, but the tracks had been removed, and the space formerly occupied by them had been filled with cobble stones and gravel. The wagon, which was on its way to the appellant's barn, was loaded with bottles and drawn by a team of mules. The deceased was playing in the street towards the middle of it gathering up pebbles from the abandoned trackway. The driver was driving his team at a rapid rate around the corner of Leavitt and Huron streets and northward on Leavitt street in the space formerly occupied by the street car rails. The evidence shows that the driver, at the time of the accident, was talking to his son, a little boy, sitting on the seat with him, and looking down at the boy with his face turned towards the west. He was laughing or joking with the boy upon the seat with him. He did not see the deceased, or know that he had run over him, until one of the witnesses herein called to him to stop. Both the east wheels of the wagon ran over the child. The father of the child was away at work, and its mother was washing clothes. The evidence tends to show that the child, a few minutes before it was killed, had left its mother to go into the back yard, and that the back yard was entirely closed, and the gates were fastened.

The theory of the appellant is that, just as the team was opposite the grocery wagon, the deceased suddenly ran from behind the grocery wagon, and was struck by the appellant's wagon, and run over and killed. The evidence of appellee tended to show that the child was in plain sight of the driver, and that, had the latter looked at the objects ahead of him, he would have avoided injuring the child. Two other of the children ran back, but the deceased tripped and fell, and the wagon ran over him before he could get up. Some of the testimony of the appellee tended to show that the appellant's wagon was going at the rate of from 10 to 15 miles an hour; other witnesses put the speed at from 10 to 12 miles per hour, and others at from 8 to 10 miles per hour. The evidence of the appellant tended to show that the appellant's wagon was proceeding north on an ordinary trot, and at a speed not to exceed 4 or 5 miles an hour.

MAGRUDER, J. (after stating the facts).

First. The first ground, urged by the appellant in favor of the reversal of the judgment, is that certain instructions given for the appellee were erroneous.

The first instruction is said to be erroneous because it tells the jury that, if they ‘find from the evidence that the plaintiff has made out his case by a preponderance of the [211 Ill. 534]evidence, as alleged in the declaration, then the jury should find the defendant guilty,’ etc. The objection made to the instruction is that it uses the words ‘as alleged in the declaration.’ This form of instruction has been approved by this court in a number of cases, and it is unnecessary to repeat what is said in those cases. Pennsylvania Co. v. Marshall, 119 Ill. 399, 10 N. E. 220;

[71 N.E. 1083]

Central Railway Co. v. Bannister, 195 Ill. 48, 62 N. E. 864;West Chicago Street Railroad Co. v. Scanlan, 168 Ill. 34, 48 N. E. 149;Chicago City Railway Co. v. Carroll, 206 Ill. 318, 68 N. E. 1087;City of La Salle v. Kostka, 190 Ill. 130, 60 N. E. 72;Mt. Olive Coal Co. v. Rademacher, 190 Ill. 538, 60 N. E. 888;North Chicago Street Railroad Co. v. Polkey, 203 Ill. 225, 67 N. E. 793;West Chicago Street Railroad Co. v. Lieserowitz, 197 Ill. 607, 64 N. E. 718;Laflin & Rand Powder Co. v. Tearney, 131 Ill. 322, 23 N. E. 389,7 L. R. A. 262, 19 Am. St. Rep. 34;Ohio & Mississippi Railway Co. v. Porter, 92 Ill. 437.

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27 practice notes
  • Campbell v. Laundry, (No. 460.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 9, 1925
    ...Northern R. Co., 15 Idaho, 513, 99 P. 91; Devine v. Chicago Ry. Co., 189 111. App. 435; U. S. Brewing Co. v. Stoltenberg, 211 111. 531, 71 N. E. 1081, Elwood Electric Co. v. Ross, 26 Ind. App. 258, 58 N. E. 535; Smith v. A. T. & S. F. R. R. Co., 25 Kan. 738; 111. Cent. R. R. Co. v. Dupree, ......
  • Rober v. N. Pac. Ry. Co.
    • United States
    • United States State Supreme Court of North Dakota
    • May 23, 1913
    ...cause of the death of the deceased.” These facts alone were sufficient to send the case to the jury. U. S. Brewing Co. v. Stoltenberg, 211 Ill. 531, 71 N. E. 1081. [11] In the case of Korab v. Chicago, Rock Island & Pacific Ry. Co., 149 Iowa, 711, 128 N. W. 529, 41 L. R. A. (N. S.) 32, the ......
  • Pillet v. Ershick
    • United States
    • United States State Supreme Court of Florida
    • March 8, 1930
    ...bearing upon the contributory negligence of the plaintiff. See Sandifer v. Lynn, 52 Mo.App. 533; United States Brewing Co. v. Stoltenberg, 211 Ill. 531, 71 N.E. 1081; Healy v. Johnson, 127 Iowa, 221, 103 N.W. 92. In some jurisdictions it is held that the violation of a street ordinance by a......
  • Gourley v. Chicago & E.I. Ry. Co., Gen. No. 39098.
    • United States
    • United States Appellate Court of Illinois
    • May 17, 1938
    ...injury.” Plaintiff cites the following cases: Price v. Illinois Bell Tel. Co., 269 Ill.App. 581;United States Brewing Co. v. Stoltenberg, 211 Ill. 531, 71 N.E. 1081; Common-wealth Electric Co. v. Rose, 214 Ill. 545, 73 N.E. 780;Kenyon v. Chicago City R. Co., 235 Ill. 406, 85 N.E. 660;Hooble......
  • Request a trial to view additional results
27 cases
  • Campbell v. Laundry, (No. 460.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 9, 1925
    ...Northern R. Co., 15 Idaho, 513, 99 P. 91; Devine v. Chicago Ry. Co., 189 111. App. 435; U. S. Brewing Co. v. Stoltenberg, 211 111. 531, 71 N. E. 1081, Elwood Electric Co. v. Ross, 26 Ind. App. 258, 58 N. E. 535; Smith v. A. T. & S. F. R. R. Co., 25 Kan. 738; 111. Cent. R. R. Co. v. Dupree, ......
  • Rober v. N. Pac. Ry. Co.
    • United States
    • United States State Supreme Court of North Dakota
    • May 23, 1913
    ...cause of the death of the deceased.” These facts alone were sufficient to send the case to the jury. U. S. Brewing Co. v. Stoltenberg, 211 Ill. 531, 71 N. E. 1081. [11] In the case of Korab v. Chicago, Rock Island & Pacific Ry. Co., 149 Iowa, 711, 128 N. W. 529, 41 L. R. A. (N. S.) 32, the ......
  • Pillet v. Ershick
    • United States
    • United States State Supreme Court of Florida
    • March 8, 1930
    ...bearing upon the contributory negligence of the plaintiff. See Sandifer v. Lynn, 52 Mo.App. 533; United States Brewing Co. v. Stoltenberg, 211 Ill. 531, 71 N.E. 1081; Healy v. Johnson, 127 Iowa, 221, 103 N.W. 92. In some jurisdictions it is held that the violation of a street ordinance by a......
  • Gourley v. Chicago & E.I. Ry. Co., Gen. No. 39098.
    • United States
    • United States Appellate Court of Illinois
    • May 17, 1938
    ...injury.” Plaintiff cites the following cases: Price v. Illinois Bell Tel. Co., 269 Ill.App. 581;United States Brewing Co. v. Stoltenberg, 211 Ill. 531, 71 N.E. 1081; Common-wealth Electric Co. v. Rose, 214 Ill. 545, 73 N.E. 780;Kenyon v. Chicago City R. Co., 235 Ill. 406, 85 N.E. 660;Hooble......
  • Request a trial to view additional results

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