Chicago West Division Railway Co. v. Mills

Mr. Justice Scholfield delivered the opinion of the Court: The several alleged errors in the rulings below will he passed upon in the order of their discussion in the argument on behalf of appellant. First—The point is made that it is alleged in the declaration that it became the duty of the defendant, upon the plaintiff’s request, to slacken speed, so as to enable her, in the exercise of due care, to alight from the car without injury; that it neglected to do so, but on the contrary, on the request of the plaintiff, the defendant caused its car to he stopped, and the plaintiff, with the defendant’s consent and permission, attempted to alight from the car, and while so attempting the defendant carelessly, etc., caused the car to be suddenly and violently started, etc., whereby, etc.,—whereas there is no evidence in the record tending to prove that the plaintiff requested the defendant to stop for her to alight, or that it did so, or that she obtained the defendant’s consent or permission to alight when she attempted to do so, or that the defendant or its servants knew she was attempting to alight when she undertook to do so, and that therefore the circuit • court should have given, as asked, the defendant’s fourth instruction, namely, that “upon the evidence in this case the plaintiff can not recover.” A party is not hound to prove matters which are merely surplusage. If the proof does not correspond with such matters, the variance is immaterial. (Pennsylvania Co. v. Conlan, 101 Ill. 93.) If the whole of an averment may be stricken out without destroying the plaintiff’s right of action, it is not necessary to prove it. (Williamson v. Allinson, 2 East, 446; Maxwell v. Maxwell, 31 Maine, 184.) The gist of the present action is the negligence of the defendant in starting the car while the plaintiff was in the act of alighting. It was of no consequence whether the car was stopped at the instance of the plaintiff or not, since the act of stopping was productive of no injury, and is in no respect complained of. It is sufficient while the car was stopped parties were getting off, and the plaintiff, while attempting also to do so, with due care, was injured by reason of the negligent starting of the car by the defendant’s servant. Nor could it be material to determine whether plaintiff asked or obtained permission of the defendant or its servants to alight. The car being stopped, from whatever cause, at a place where passengers were in the habit of alighting, she had the undoubted right to alight without making any request or obtaining any permission in that regard, and if the defendant’s servants knew, or by the exercise of due care would have known of it, it was negligence on their part to start the car before she had a reasonable time in which to alight. So it would seem clear, if the allegation that counsel insists there is no evidence tending to prove, were stricken from the declaration, it would still be substantially good. Where there is evidence tending to prove a cause of action, it is an invasion of the province of the jury to instruct them that the plaintiff can not recover. Guerdon v. Corbett et al. 87 Ill. 272; Hubner v. Feige, 90 id. 208; Peoria Ins. Co. v. Frost, 37 id. 333. There was some evidence tending to prove that the plaintiff was injured while attempting to alight with due care, by reason of the negligence of the defendant’s servant in starting .the car. It follows, in our opinion, there was no error in refusing to give the instruction. Second—The first instruction, given at the instance of the plaintiff, is as follows : “The court instructs the jury, as matter of law applicable to this case, that it was the duty of the defendant, as a common carrier of persons at Chicago for hire, when it stopped its cars, whether in consequence of a signal from some pas.senger on the car or not, not to start the same again while 'its passengers are in the act of getting off the car, if the fact that its passengers are in the act of alighting is known to the person having charge of the same, or would be known to such person by the exercise of due care and caution in the discharge of his duties, and as a common carrier of passengers defendant should give its passengers a reasonable opportunity to alight from its cars before starting the same, when the fact _ that its passengers desire to alight is known, or by the exercise of due care and diligence would be known to the person in charge of the car; and if the jury believe, from the evidence and the circumstances proven in this case, that on the 13th day of May, A. D. 1875, the plaintiff was a passenger upon one of the street cars of the defendant operated by it on Madison and State streets, within the city of Chicago, and that while such car of defendant in which plaintiff and others were being conveyed as passengers, was driven along State street, north of Randolph street, it was stopped for the purpose of allowing its passengers, among which was the plaintiff, to get off, or had stopped for any other purpose, with or without a signal to stop, and when so stopped the passengers were in the act of getting off said car, with the knowledge of the driver of said car; and if you further find, from the evidence, that the plaintiff, at this time and place, the said car being stopped and not in motion, (if you find, from the evidence, that such was the fact,) in the exercise of due care and diligence on her part, was also in the act of alighting from said car, and that the defendant, by its driver, started the said car while plaintiff was so getting off, and. before she had a reasonable time to do so, and thereby threw • the plaintiff down upon the street,, and by reason thereof the neck of her thigh-bone was broken or injured, without negligence or fault ón her part, and by reason of negligence or carelessness on the part of the driver of the car, (if you find, from the evidence, he was guilty of carelessness or negligence in starting the car,) then the defendant would be liable for the damages thereby sustained by plaintiff, and the verdict' should be for the plaintiff, unless the jury further find, from the evidence, that the release read in evidence was executed by plaintiff under an agreement which she was, at the time of making it, capable of understanding and intelligently consenting to, or that, after being fully informed thereof, she ratified it or failed to return the consideration paid to her, (if the jury believe, from the evidence, any was paid to her,) and thereby avoid said release. ” Three objections are taken by counsel to this instruction: 1. It is insisted the evidence does not show that the defendant was in any manner negligent, and that therefore there was nothing in the evidence upon which to rest the instruction. It may be that if the question of the preponderance of the evidence upon the question of negligence were submitted to us as an original question, we would be of opinion that the decided preponderance is with the defendant. Still, that could not be of the slightest moment in respect of the duty now incumbent upon us. The question is, simply, did the evidence tend to establish the point submitted ? If it did, then it was properly left to the jury. We have already said that, in our opinion, there was evidence tending to establish negligence in the servants of the defendant, and that was sufficient. The question was, then, proper to be submitted to the jury. 2. It is again insisted that the plaintiff, by her conduct, plainly told the driver of the car that she intended, after coming down on the car and not alighting at the end of the route, to make the return trip on the same car, and that hence so much of the instruction as declared the duty of the defendant to be not to start the ears while its passengers are in the act of getting off, was erroneous, because inapplicable. It can not with accuracy be said all the evidence shows, and none tends to the contrary, as here insisted by counsel for the defendant. Mrs. Camp testified, among other things: “People were getting off the cars, and we (i. ¿., plaintiff and witness,) finally concluded we also would get off. I got off. I noticed she arose and followed immediately. ” Again she said: “One reason why we thought we would get off, was because others were getting off. Others arose a little before, and we arose as others. * * * They were in the act of rising and getting out as we did. My recollection is there were several that seemed to be rising and leaving the car. The car was standing still, and others were getting off. ” Plaintiff, among other things, testified: “Mrs. Camp got off. Others got off, and I attempted to get off. The car started while one of my feet was on the side platform of the summer car and the other foot was stepping down, and threw me down. The car must have been started suddenly. I felt a jerk, and seemed to feel a whirl, and fell. * * * When we were getting off, the car was standing still. Had not been standing still many minutes. People were getting off. We commenced to get off as soon as it stopped. There were other ladies. They got off the same side as we did. I saw Mrs. Camp get off. The ear stopped to let passengers off, as I took it. I do not think I rang the bell—could not tell who did ring the bell. It is my impression that it was rung. Am certain this car was standing still. Did not attempt to get off while the car was moving. It was an open summer car, and he (the driver) could have seen me. There was no obstruction to prevent him knowing whether the passengers were getting off. ” The driver of the car testified, on cross-examination : “The accident occurred on State street, between fifty and one hundred feet from Randolph street. The car was an open summer car. The fact that I saw the lady fall from the side of the car refreshes my recollection. * * * There were no obstructions to prevent my seeing this lady as she was stepping down from the car. I could see her distinctly, and she could see me. * * * There are lots of passengers that ride either way on this part of State street, north of Randolph. There was no provision against it. * * * Anybody could get on or off between Bandolph and Lake streets, if they chose. There was no provision against it.” If the driver of the car knew that passengers were getting off, as it would seem from this evidence he did, it was his duty not to start the car until they had sufficient time to get off. So, also, where a driver stops a car at a place where passengers are in the habit of getting off, he must not start it again until he knows he can do so in safety to his passengers. There is nothing in the evidence from which it is pretended the driver was authorized to infer plaintiff did not intend to get off, except the fact she rode to the end of the track, and did not get off. But it can not be said that any legal inference results from this. People may get off when and where they please, provided the car is stopped .when they attempt to do so. But even if the driver had been expressly notified by plaintiff that she did not intend to get off, when he saw passengers getting off it was still his duty to wait until they had reasonable time to leave the car, before starting. 3. It is insisted that the instruction in respect of the release submits an improper test,—that although she may not have been under any mental impairment, still, under this instruction, if she did not have sufficient intelligence she would not be bound by it. This instruction must be construed with reference to the facts in evidence before the jury, and being so construed, it must have been understood that the want of intelligence was caused by her being temporarily under the influence of opiates, etc.; and any pernicious effect that this instruction might possibly have otherwise had, was fully counteracted by the defendant’s third instruction, supplementing and explaining all that is here omitted. We think, on the whole, the instruction is free of legal objection. Third—We are precluded, in cases like the present, from going into any controverted question of fact. The language of the amended Practice act of June 2, 1877, is explicit, that “no assignment of error shall be allowed which shall call in question the determination of the inferior appellate court upon controverted questions of fact.” Comment can not make this more plain. The judgment is affirmed. Judgment affirmed.