West Chicago St. R. Co. v. Liderman

• Citation: 187 Ill. 463,58 N.E. 367
• Parties: WEST CHICAGO ST. R. CO. v. LIDERMAN.
• Decision Date: 19 October 1900
• Court: Supreme Court of Illinois

187 Ill. 463

58 N.E. 367

WEST CHICAGO ST. R. CO.

v.LIDERMAN.

Supreme Court of Illinois.

Oct. 19, 1900.

Appeal from appellate court, First district.

Action for injuries by Leah Liderman against the West Chicago Street-Railroad Company. From a judgment of the appellate court (87 Ill. App. 638) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.

John A. Rose and Louis Boisot, Jr. (W. W. Gurley, of counsel), for appellant.

Nelson Monroe, for appellee.

WILKIN, J.

Appellee recovered a judgment against appellant in the superior court of Cook county in an action on the case for personal injuries, which has been affirmed by the branch appellate court for the First district. The declaration charged both negligence and willful misconduct by the employés of the defendant, causing the injury sued for. It was not, however, claimed upon the trial, nor is it now, that the act was wanton or willful. The first additional count states the cause of action sued for as follows: That while the plaintiff, with due care, was going upon a street and the track of the defendant to rescue her infant child from being run over and injured by an approaching train of defendant's cars, defendant negligently operated said train so that the grip car ran against plaintiff, throwing her to the ground and injuring her. The accident occurred on July 19, 1897. Plaintiff then lived at 447 Halsted street, on which the defendant operated a line of cable cars. On that afternoon she went to a grocery store on the opposite side of the street, a short distance north of her residence, taking with her a child about 3 years of age. As she came out of the store she stopped on the sidewalk to speak to a friend whom she met there. She at first held the child by the hand, but during the conversation unconsciously let go of it, and a moment later, as she testified, saw it upon the street-car track, and a car approaching at the usual rate of speed, some 80 or 90 feet away. She instantly ran towards the child, throwing up her hands, and crying out to stop the car. Another person saw the danger to the child, and called to the gripman in charge of the car to stop. The evidence is conflicting as to whether he was guilty of negligence in failing to stop the car before the collision, and also whether the child was upon the track, or in actual danger, at the time plaintiff ran in front of the car. It is admitted, however, that these and all other controverted questions of fact, except due care on the part of the plaintiff, have been settled adversely to defendant below. On this branch of the case it is earnestly contended that the evidence neither proved nor tended to prove that fact, and therefore the trial court erred in refusing instructions asked by the defendant to take the case from the jury, and this is the only point of controversy in this court.

Counsel for appellee, relying upon the case of Peirce v. Walters, 164 Ill. 560, 45 N. E. 1068, and later cases to the same effect, insists that defendant, by submitting its case to the jury on the evidence and instructions as to the law, waived the right to assign error upon the refusal of its peremptory instructions. The position is without force, and wholly unsupported by the cases cited. Here an instruction to return a verdict of not guilty was asked and refused at the close of plaintiff's testimony, and again at the conclusion of all the evidence. It was not until after the refusal of the latter that the defendant company proceeded to submit general instructions to be given the jury. This has always been held to properly raise the question of law whether there is any evidence in the record fairly tending to prove a plaintiff's case. In the cases cited the only request to instruct the jury to find for the defendant was found in a series of instructions asked when the case was submitted to the jury.

Counsel for appellee, though insisting that plaintiff below was shown to have been in the exercise of due care for her personal safety at the time of the accident, insists upon the rule of law held in some jurisdictions to apply in such actions ‘that the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party's negligence.’ Such has never been the law in this state. Here the rule is: ‘Where a party seeks to recover damages for a loss which has been caused by negligence or misconduct, he must be able to show that his own negligence or misconduct has not concurred with that of the other party in producing the injury; and the burden of proof is upon the plaintiff to show not only negligence on the part of the defendant, but also that he exercised proper care and circumspection; or, in other words, that he was not guilty of negligence.’ Railroad Co. v. Grimes, 13 Ill. 585; Railroad Co. v. Evans, 88 Ill. 63;Abend v. Railroad Co., 111 Ill. 202;Steel Co. v. Martin, 115 Ill. 358, 3 N. E. 456; Railway Co. v. Louis, 138 Ill. 9, 27 N. E. 451; Railroad Co. v. Nowicki, 148 Ill. 29, 35 N. E. 358; and later cases.

The question, then, for our decision upon this record must be, did the evidence produced upon the trial, with all its reasonable intendments, justify the jury in concluding that the plaintiff was, under all the circumstances, in the exercise of reasonable care for her own safety at the time she received the injury sued for? It may-we think must-be conceded that, leaving out of view the peril of her infant child, she was guilty of such contributory negligence as would defeat the action. Counsel for appellant admit that the general rule is that a person has a right to risk his own life or limb in an effort to save the life of another person, and cannot be charged with contributory negligence in so doing. In Eckert v. Railroad Co., 43 N. Y. 502, 3 Am. Rep. 721, the action was for negligently causing the death of the plaintiff's intestate, who was killed while attempting to rescue a child on the track of the defendant company under circumstances not unlike those sorrounding the parties in this case. After stating that the conduct of the deceased would have been grossly negligent but for the effort to save the child, it is said: ‘But the evidence further showed that there was a small child upon the track, who, if not rescued, must have been inevitably crushed by the rapidly approaching train. This the deceased saw, and he owed a duty of important obligation to this child to rescue it from its extreme peril, if he could do so without incurring great danger to himself. Negligence implies some act of commission or omission wrongful in itself. Under the circumstances in which the deceased was placed it was not wrongful in him to make every effort in his power to rescue the child compatible with a reasonable regard for his own safety. It was his duty to exercise his judgment as to whether he could probably save the child without serious injury to himself. If, from the appearances, he believed that he could, it was not negligence to make an attempt so to do, although believing that possibly he might fail, and receive an injury himself. He had no time for deliberation. He must act instantly, if at all, as a moment's delay would have been fatal to the child. The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons. For a person engaged in his ordinary affairs, or in the mere protection of property, knowingly and voluntarily to place himself in a position where he is liable to receive a serious injury is negligence which will preclude a recovery for an injury so received; but when the exposure is for the purpose of saving life it is not wrongful, and therefore not negligent, unless such as to be regarded either rash or reckless. The jury were warranted in finding deceased free from negligence, under the rule as above stated.’ This is a clear statement of the law and the reason upon which the rule rests, and is abundantly sustained by the authorities. Whether, in this case, the plaintiff acted with reasonable prudence or with recklessness in attempting to save her child, was a question for the...