North Chicago Electric Railway Co. v. Peuser

Mr. Chief Justice Boggs delivered the opinion of the court: In an action on the case instituted by the appellee he was awarded judgment against the appellant company in the sum of $2000, and the judgment was affirmed by the Appellate Court for the First District. The record is here by the further appeal of the railway company. The declaration alleged that the defendant company so carelessly and negligently managed a certain street car that it collided with a wagon in which plaintiff was riding, whereby plaintiff was thrown out and injured. The defendant (appellant) pleaded the general issue. The appellant company operates a line of electric street cars along Milwaukee avenue, in the city of Chicago. At about the hour of nine o’clock of the night of the 22d day of August, 1897, one of its cars struck a light spring wagon in which appellee and one Fred W. Daebn were riding and threw them to the surface of the street, thereby injuring the appellee. Appellee and his companion were driving in a southerly direction on and along the track of appellant’s line of electric street railroad, and the car which ran upon and struck the wagon was moving in the same direction. It was quite dark and in the outskirts of the city. Gasoline lamps at the corners and centers of the blocks furnished the only light. The affirmative testimony,—that of the motorneer and a number of passengers;—was, that the motorneer sounded the bell repeatedly for the purpose of warning the appellee that the car was approaching. The evidence also tended to show the appellee and his companion were under the influence of intoxicating liquors and were singing and shouting. They finally attempted to turn the wagon from the track of the street railway, but whether they heard the bell and wanted to leave the track because the car was approaching them from the rear, or desired to drive to a saloon they were approaching by the roadside, did not clearly appear. There was evidence tending.to show the motorneer endeavored to stop the car when it appeared there was danger of a collision. There was also evidence tending to show the car was moving along at an excessive rate of speed. It was essential the jury should have been accurately and correctly advised as to the relative rights, duties .and obligations of the appellant company and of the appellee. The appellant company asked, but the court refused to give, the following instruction to the jury: “The jury are instructed that by reason of its convenience to the public as a carrier of passengers, and because of the inability of its cars to turn out, a street railway company is invested with the right of way over other vehicles over the portion of street occupied by its tracks, and it is the duty of the drivers of such vehicles to turn out and allow its cars to pass, and to use care not to obstruct and delay the same, and if the jury believe, from the evidence, that the plaintiff, while neglecting such duty and failing thereby to use ordinary care for his own safety, was injured, then he cannot recover in this case.” Street railway companies are public carriers of passengers, and are given corporate existence to enable them to provide the means of rapid transportation for the convenience of the people and the promotion of the public welfare. The cars of such corporations cannot give and take the road,—turn to the right or to the left, —as can ordinary vehicles, but must move on and along the rails laid down in the street for that purpose. The grant to such corporation of the right to use the streets of a city must, by necessary implication, be held to confer the right of passage along its track superior to the right of a horseman or one driving a vehicle on that portion of the street occupied by the tracks of the railway company. Such companies do not, however, have an exclusive right to the use of that part of the streets occupied by their tracks. The public are not deprived of the right to use all parts of the street in the ordinary manner, but retain such right subject only to the superior right of passage, which, out of considerations of public convenience and the necessities of the case, 'must be yielded to the street cars on that portion of the street occupied by the tracks of the railway. The citizen passing along a street in a carriage, buggy or other like vehicle, subject to the rule he must exercise ordinary care for his own safety and not obstruct the passage of the car, may drive on the track or rails laid in the street by k street car company and drive along and upon such track or rails without becoming a trespasser, but it is his duty to leave the track whenever his presence there serves to impede the passage of the cars. On the other hand, a street railway ■ company is charged with the knowledge that the public may lawfully use the entire street, and it must, in operating its cars on the streets, employ all reasonable means to avoid injuring those whom it knows may rightfully use that part of the street occupied by its tracks. The rights, duties and liabilities enjoyed by and resting upon the individual and street railway companies, respectively, when a horseman, footman or driver of a vehicle is endeavoring to cross the track of a street railway company at the intersection of streets are not here involved and need not be here adverted to. What we have said applies only to other portions of the streets than street intersections. The principles we have announced are supported by adjudicated cases in .this court and the consensus of modern authority. (Chicago West Division Railway Co. v. Bert, 69 Ill. 388; North Chicago Street Railway Co. v. Smadraff, 189 id. 155; Elliott on Roads and Streets,-2d ed.-secs. 761, 762; 23 Am. & Eng. Ency. of Law,-1st ed.-pp. 990, 991.) It was error to refuse to grant the instruction. .It is, however, urged the appellant company should be deemed estopped to complain of this error for the reason it, as it is urged, asked the court to instruct the jury that the rights and duties of the appellee and the company were reciprocal. Instruction No. 5 given in behalf of the appellant company is as follows: “The rights and duties of persons occupying the public street are reciprocal, and although it is the duty of a street car company operating its cars upon such a street to use due and ordinary care for the safety of persons using such street, yet it is also the duty of such persons • to use the same with due and ordinary care for their own safety; and if you believe, from the evidence, that the plaintiff in this case failed to use the care which a reasonably prudent person would have used under similar circumstances, to avoid the injury for which this suit is brought, then he cannot recover in this case.” We have frequently recognized and enforced the doctrine that a party is held, on appeal, to the position which he assumed in the trial court, and will be estopped to complain in the court of review of an erroneous ruling of the trial court in passing upon instructions if the court was induced to make such ruling by the procurement or invitation of such party. (Pierce v. Millay, 62 Ill. 133; Northern Line Packet Co. v. Binninger, 70 id. 571; Ryan v. Donnelly, 71 id. 100; Illinois Central Railroad Co. v. Latimer, 128 id. 163; Snyder v. Snyder, 142 id. 60; Consolidated Coal Co. v. Haenni, 146 id. 614; Illinois Central Railroad Co. v. Harris, 162 id. 200; Illinois Steel Co. v. Novak, 184 id. 501.) The principle which governed in the decision of the cases cited is, that an appellant or plaintiff in error must be consistent; that he cannot procure the trial court to make a specific ruling and be allowed to complain in a court of review that such ruling was erroneous. Otherwise stated, the rule is, a party must accept the result of an error which was occasioned at his request or by his invitation. The record here, however, discloses the appellant company did not invite or desire the court to announce the principle set forth in instruction No. 5, that the rights of appellant company and the appellee were reciprocal, but, on the contrary, that it sought to have the court adopt the view announced in the refused instruction,—that it was invested with a superior right of way, and that it was the duty of the appellee to drive off the tracks in order that its car might pass. The record shows the appellant company prepared the refused instruction and presented it to the court and asked that it be given; that the court declined to grant it and marked it as refused; that the appellant company then and there objected and excepted to such ruling and had its exceptions noted and duly preserved. Being unable to induce the court to instruct the jury according to its view of the true legal principle affecting, its rights, the appellant company then presented a series of instructions embodying the theory of the law on the point as held by the court, as the most favorable declaration from the court to the jury possible to be obtained. The appellant company was not required to abandon all chances of a favorable verdict because the court would not grant an instruction to which it believed it was-entitled. Without impropriety or the loss of the right to complain of the refusal of the court to declare the law as the company believed it to be, counsel for the appellant company might prepare instructions applicable to its cause in "that view of the law which the court had announced that it entertained. The appellant company was powerless to combat the view of the court otherwise than by excepting thereto and preserving such exceptions, as'was here done. Its position in the trial court and in this court are in nowise inconsistent. It urged there the same theory of the law that it. urges here, and it is nowise at fault for the error which occurred, and consequently not estopped. The rule has been long firmly established in this court that the trial judge is at liberty to modify an instruction to make it conform to the view of the law held by the court, and that if such course be adopted by the court, the party who presented the instruction may except to the modification, read the instruction, as modified, to the jury, and assign as for error in this court the refusal of the court to grant the instruction as asked. It was so expressly decided in Galena and Chicago Union Railroad Co. v. Jacobs, 20 Ill. 478, and this ruling has been uniformly followed. The rulings must be the same when, as here, instead of modifying the original -instruction by erasure or interlineation, the instruction is refused and the theory which the court would have announced by the interlineation or erasure is carried to the jury by an independent instruction framed for that purpose. It was error to refuse to direct the jury as requested by the refused instruction. The charge involved a rule of law important to the rendition of a correct verdict in the cause, and the error was prejudicial in character. The judgment must be and is reversed and the cause will be remanded. Reversed and remandedj.