Walsh v. Cullen

• Citation: 85 N.E. 223,235 Ill. 91
• Parties: WALSH v. CULLEN.
• Decision Date: 18 June 1908
• Court: Supreme Court of Illinois

235 Ill. 91

85 N.E. 223

WALSH

v.CULLEN.

Supreme Court of Illinois.

June 18, 1908.

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; George A. Dupuy, Judge.

Action by Agnes Higgins against Matthew Cullen. From a judgment for plaintiff, defendant appealed to the Appellate Court, where the judgment was affirmed. On plaintiff's death Margaret E. Walsh, her executrix, was substituted by order of said court. Defendant prosecutes a further appeal to the Supreme Court. Reversed and remanded.Shope, Zane, Busby & Webber (E. Bentley Hamilton, of counsel), for appellant.

A. W. Brickwood and Benj. F. Richolson, for appellee.

CARTWRIGHT, C. J.

Agnes Higgins brought this suit in the superior court of Cook county to recover damages for an injury suffered by her in attempting to enter an elevator in the hotel of the appellant, Matthew Cullen, where she was employed as a waitress. A judgment in her favor and a judgment of the Appellate Court affirming the same were reversed by this court, and the facts as they appeared in the record before the court are fully stated in the opinion then filed. Cullen v. Higgins, 216 Ill. 78, 74 N. E. 698. Upon a second trial another judgment in favor of the plaintiff was rendered, and that judgment was also affirmed by the Appellate Court for the First District. The plaintiff died, and the appellee, Margaret E. Walsh, her executrix, was substituted by order of the Appellate Court. The appellant has prosecuted a further appeal to this court.

The reversal on the former appeal resulted from errors of the trial court in refusing to direct a verdict of not guilty for want of proof that the plaintiff was in the exercise of due care, and in giving an instruction permitting the jury to include in their estimate of damages injury to personal appearance and refusing an instruction correctly stating the law as to care required of the plaintiff. On the second trial the testimony of the plaintiff as to what she did and the exercise of care by her was quite different from that given on the first trial. The time during which she stood at the elevator door without notifying the elevator boy of her presence was shortened from three, four, or five minutes at the first trial to a few seconds-just long enough for the bell boy, who was coming to the elevator, to walk about 12 feet into the elevator and open the door. She also testified that the elevator did not start as soon as the bell boy stepped into it; that, when the elevator started, she had one foot on it and had her weight on that foot; and that, when the elevator went up, she was half in the elevator. There was also evidence that the bell boy had operated the elevator before, and that the boys were elevator boys and bell boys alternately. It is insisted that the evidence of the plaintiff on the last trial, being materially different from that given on the first trial, should not be criedited. But that was a question for the jury, the trial court and the Appellate Court. It is not open to consideration here.

There were three counts in the declaration. The first and third alleged, in general language, that the plaintiff became a passenger on the elevator on the first floor to be carried to one of the floors above, and the second alleged that she was about to become a passenger when the elevator was started upward. Neither of the counts averred any fact which would give the plaintiff the rights of a passenger in the sense in which that term is used concerning the relation of carrier and passenger and there was no averment that the duties of the defendant were those of a common carrier of passengers. The third count averred that the elevator was operated for conveying passengers and employés to and from the various floors, and one who operates an elevator for carrying his employés is not a common carrier of passengers. 4 Thompson on Negligence, § 3895. The averments that the plaintiff became or was about to become a passenger might fairly be regarded as a mere statement that she took passage or was about to take passage in the elevator, and not that the relation of carrier and passenger existed, with its corresponding obligations and duties. The facts proved were that the defendant kept a hotel, where the plaintiff was employed as a waitress at $14 per month, and was furnished with her board and a room on the third floor. The elevator was furnished for the use of the guests of the hotel, and the employés used it without objection whenever they chose to do so. The dining room where the plaintiff rendered her services was on the second floor. She had gone out of the hotel about 9 o'clock in the evening for a walk with a friend and returned about 11 o'clock. She was going to the room furnished her as a servant to spend the night, with the intention of resuming her usual duties in the morning. There was no dispute about these facts, and the question arose on the trial whether they created the relation of carrier and passenger between the parties. On the argument to the jury counsel for the plaintiff asserted that these facts created that relation; that she was not a servant at the time but a passenger; that she had paid for her passage; that being a passenger, the defendant was bound to exercise the same degree of care toward her as toward guests of the hotel; and that his obligations and duties toward her were those of common carrier to passenger. Counsel for the defendant made frequent objections to such statements and that line of argument, and the court overruled the several objections made. The defendant then asked the court to give this instruction to the jury: ‘The court instructs the jury that the plaintiff was not in the position of a passenger upon the elevator in question, and that the plaintiff was not in the position of a guest of the hotel in boarding and riding upon the elevator in question, and that the defendant did not owe to the plaintiff that...