West Chicago Street Railroad v. Marks

Mr. Justice Phillips delivered the opinion of the court: It sufficiently appears from the allegations of the declaration that the plaintiff became a passenger on the defendant’s cars and the latter did not use proper care to see that the former should be carried safely; that it negligently ran its cars so near to a fixed structure that there was not room enough, unless standing very close to the car, when riding on the foot-board, to be carried in safety, and that the plaintiff did not know of the existence of the fixed structure and was not warned of it by the defendant, and whilst using due care and caution for his own safety was unavoidably struck and injured. We are of opinion that the declaration stated a cause of action. The answer of the judge by giving an instruction to the jury in response to their communication was not error. The jury had nothing to do with the relationship existing between the city of Chicago and the appellant with reference to the use of the viaduct, nor as to whether the tracks were situated, with reference to the obstruction, in the position they were by the direction of the municipality. That question was not involved in the case submitted to them under the issue, and it was not error for the court to so instruct them. We find no error in the record, and the judgment of the Appellate Court for the-First District is affirmed. Judgment affirmed.