Wyckoff v. Chicago City Ry. Co.

• Decision Date: 18 June 1908
• Citation: 85 N.E. 237,234 Ill. 613
• Parties: WYCKOFF v. CHICAGO CITY RY. CO.
• Court: Illinois Supreme Court

234 Ill. 613

85 N.E. 237

WYCKOFF

v.CHICAGO CITY RY. CO.

Supreme Court of Illinois.

June 18, 1908.

Appeal from Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; John L. Healy, Judge.

Action by Aaron V. Wyckoff, Jr., against the Chicago City Railway Company for personal injuries. From a judgment of the Branch Appellate Court for the First District, affirming a judgment for plaintiff, defendant appeals. Affirmed.

William J. Hynes, Samuel S. Page, and Watson J. Ferry, for appellant.

Wing & Wing and Fred W. Bentley, for appellee.

CARTWRIGHT, C. J.

The appellee, Aaron V. Wyckoff, Jr., became a passenger upon a south-bound cable train of th eappellant, Chicago City Railway Company on State street, in Chicago. The train consisted of a grip car drawing two passenger cars and propelled by an iron bar called a ‘grip,’ which passed from the grip car down through a slot to a cable running in a conduit. Between Madison and Monroe streets the grip iron stuck, and after a jerking motion the grip car stopped, although the cable continued to run. The train was running at the rate of five or six miles an hour, and the passenger cars ran with much force against the grip car. Appellee was standing on the front platform of the first car behind the grip car, and that platform was broken, and appellee was severely injured. When the accident occurred, the wreck wagon of the defendant was called, and it was found that the grip iron stuck in some way and was immovable, and the men with the wreck wagon cut into it with a chisel and hitched onto it, and broke it off to get the grip car out of the way. Appellee brought this suit in the circuit court of Cook county to recover damages for his injuries and obtained a judgment, which has been affirmed by the Branch Appellate Court for the First District.

At the conclusion of the evidence, the defendant asked the court to instruct the jury to return a verdict of not guilty, and also made a like motion as to each count of the declaration. The court sustained the motion as to the first and second counts, and directed the jury to disregard them, but denied the motion as to the other counts, and refused to direct a verdict as requested. The twelfth assignment of error is that the court erred in refusing to direct a verdict of not guilty, and it is contended that the court erred in such refusal because there was no evidence fairly tendingto prove the specific charges of negligence contained in the counts of the declaration which were submitted to the jury. The third count charged that the defendant negligently suffered and permitted the slot through which the grip ran, or the conduit, to become filled, warped, or clogged so that the grip would not pass; and the fourth count charged that the defendant negligently suffered and permitted an appliance known as a ‘frog’ to become loose, unsafe, and misplaced. There was no controversy over the fact that the grip, which was one of the appliances for the operation of the train, was stopped in some way, causing the accident, and it is admitted by counsel that, if the charges of negligence in the declaration had been general in their character, that fact would have made a prima facie case calling upon the defendant to prove that the accident was unavoidable or attributable to a cause which it could not foresee or guard against. The fifth count charged negligence, generally, in the management and operation of the train, of which there was no evidence, and the third and fourth counts charged...