Chicago City Railway Co. v. Barker

Mr. Justice Magruder delivered the opinion of the court: At the close of all the evidence, the appellant requested the court to give an instruction, directing the jury to find the defendant not guilty; and it is the contention of the appellant that the trial court erred in refusing this instruction. It is claimed by the appellant, “that there was no evidence to sustain the verdict of the jury as to the issue, either of the appellant’s negligence, or of ordinary care on the part of appellee.” The question, which concerns this court, is not whether there was any evidence to sustain the issues involved, but whether there was any evidence, tending to establish the cause of action in the case. First—It is said that Eick did not exercise ordinary care for his own safety. There is evidence tending to show that he did exercise such care. When he turned, after passing the steam railroad crossing, from appellant’s south track into the north track, he swears that he looked back to the rear, or east, and did not see the sprinkling car. It is true that the wagon, in which he was riding, was a covered wagon, but he stated that he stretched himself out to one side, and looked back.. It is not evidence of negligence per se that a person does not stop and look back before crossing the track of a railroad, and it is a question for the jury to say, whether the failure to so stop and look is, or is not, negligence. (Chicago City Railway Co. v. Fennimore, 199 Ill. 9.) In the case at bar, the testimony of Eick shows that he did look, and that, as a result of his look, he saw nothing approaching in his rear. The argument of the appellant is that his evidence upon this subject was not true, because, under the circumstances, if he had looked, he must have seen the sprinkler approaching. This argument involves a discussion of the facts, which is inappropriate before this court, except so far as it is necessary to determine whether or not the evidence tends to sustain the cause of action. (Chicago City Railway Co. v. Martensen, 198 Ill. 511.) It was a question for the jury to decide from all the circumstances in the case, whether or not the testimony of Eick was true. The testimony is clear and positive on his part, that he did look, but whether he looked in such a way, as to show that he thereby exercised ordinary care for his own safety or not, was a matter entirely within the province of the jury to determine. The only ground, upon which appellant seeks to show that Eick was not exercising ordinary care, is the alleged untruthfulness of his testimony that he looked to see what was behind him. This being so, we are not prepared to say that there was no evidence, tending- to show that he exercised ordinary care. Second—This is a case for the application of the doctrine res ipsa loquitur. While Eick was riding west in his wagon upon the north side of the street, as he had a right to do, an electric motor car belonging to and under the management of appellant, and used for sprinkling purposes, with no motorman, or any other person, upon it, or in control of it, ran up from the rear and struck Kick’s wagon, and threw him out upon the ground, and inflicted the injuries, for which this suit is brought. This collision gives rise to a presumption of negligence on the part of the appellant, and the burden of proof was upon the appellant to rebut that presumption. The meaning of the maxim, res ipsa loquitur, is that, while negligence is not, as a general rule, to be presumed, yet the injury itself may afford sufficient prima facie evidence of negligence, and the presumption of negligence may be created by the circumstances, under which the injury occurred. “Where negligence is thus presumed from the occurrence of the injury, defendant is called upon to rebut the prima facie case by showing that he took reasonable care to prevent the happening of such injury.” (Hart v. Washington Park Club, 157 Ill. 9.) In Hart v. Washington Park Club, supra, quoting from Scott v. Docks Co. 3 Hurl. & C. 596, it was said: “There must be reasonable evidence of negligence. But when the thing is shown to be under the management of the defendant, or his servants, and the accident is such, as in the ordinary course of things does not happen if those, who have the management, use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.” (North Chicago Street Railway Co. v. Cotton, 140 Ill. 486.) In the same case, quoting from Addison on Torts (vol. 1, sec. 33), the rule was thus stated: “Where the accident is one which would not, in all probability, happen, if the person causing it was using due care, and the actual machine, causing the accident, is solely under the management of the defendant * * * the mere occurrence of the accident is sufficient prima facie proof of negligence to impose upon the defendant the onus of rebutting it.” There is no doubt here from the evidence that this electric sprinkling car, which caused the accident, was under the management and control of the appellant. When it was about one hundred and fifty yards in the rear and east of the point, where Eick’s wagon turned to go upon the north track, the motorman in charge of the sprinkling car fell from it to the ground. He was the only person, who at the time was upon the car, which had one platform in the rear and one platform in front. At the time when the motorman, whose name was Foley, fell from the sprinkling car, he had one hand on the brake handle of the car, and the other hand on the barrel tank, but without apparently holding onto anything. While in this position he turned to look back, and says that, when he did so, he received a shock, which threw him from the car. His testimony is, in part: “I don’t know whether I was looking back to see whether there were kids, or what was the matter. I put one hand on the brake handle, and I think I was looking back to see whether there was any water going out of the tank, * * * • and the other, back on the barrel, and I looked back over the tank, and at that instant, when I put back my hand, I got a shock and fell off involuntarily.” It is evident that the motorman received no serious or long continued injury from the shock, because his own testimony shows that, as soon as he struck the ground, he jumped up, and ran after the sprinkler, and attempted to loosen the trolley wire. He says: “I jumped up the moment I fell. I got up as quick as I could, and made one jump to see if I could catch the trolley rope. I failed to get that.” It was for the jury to say, whether the motorman fell from the car on account of an electric shock, which, he says, he received, or whether he fell off, as the result of his own conduct in looking back over the barrel without securing a sufficient hold upon some part of the car to prevent himself from falling off. Whether his statement was true, that an electric shock was the cause of his fall, was a matter to be determined by the jury. The testimony, introduced by the appellant, was to the effect that there was no way, in which the electric apparatus could cause such a shock; that no person had ever heard of such an accident before; that the 'witness had run the car for three weeks, and during all the morning of that day without any accident, the accident having occurred about one o’clock; that the car was of the best and highest standard of construction; that it was inspected by expert workmen every night, and that any repairs, which were needed, were promptly made. The contention of the appellant is that, if it was necessary for it to rebut the prima facie presumption of negligence raised by the occurrence of the accident in the manner stated, it did so by showing that the motorman was thrown from the car by an electric shock, which the appellant was unable to anticipate or prevent, and that, . therefore, it should not be held responsible, because the car was not in the control of any one when it struck Eick’s wagon. It was a question for the jury to determine, whether the explanation of the accident sufficiently rebutted the presumption in question. The credibility of such rebutting evidence is held by the authorities to be a question for the jury. (Uggula v. West End Street Railway Co. 160 Mass. 351; O'Flaherty v. Nassau, Electric Railway Co. 54 N. Y. Supp. 96). In actions brought for damages, alleged to result from fire, caused by the escape of sparks from locomotive engines, the fact of the communication of the fire to the property destroyed or injured is taken as prima facie evidence to charge with negligence the corporation or other person, who, at the time of the injury, is in the use and occupation of the railroad, and in such cases, “the question whether the defendant’s evidence was sufficient, under all the circumstances, to rebut the prima facie proof of negligence, arising from the undisputed fact that the fire was communicated from the engine, was clearly a question of fact for the jury, and as to which the judgment of the Appellate Court is conclusive.” (Louisville, Evansville and St. Louis Consolidated Railroad Co. v. Spencer, 149 Ill. 97; Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v. Hornsby, 202 id. 138.) As is said by the Appellate Court in their opinion deciding this case: “In the case at bar, it was for the jury to consider whether the explanation offered by appellant relieved it from the presumption of negligence raised by the undisputed facts. If appellant ran its car in an unsafe condition, evidence tending to show such condition was admissible under the second count.” It is said, however, on the part of the appellant that the declaration in this case charged specific acts of negligence, and that, therefore, Eick was not entitled to rely upon presumptive negligence. The cases of West Chicago Street Railroad Co. v. Martin, 154 Ill. 523, and Chicago and Eastern Illinois Railroad Co. v. Driscoll, 176 id. 330, are relied upon in support of this position. But the facts of the latter cases, when carefully examined, will show that they have no application to the case at bar. The declaration here charges that the appellant “carelessly, negligently and wrongfully ran and managed its car.” If the appellant placed the sprinkling car under the control of a motorman, who lost control of it by his own carelessness, then the sprinkling car was not properly run and managed by the appellant. We think that the declaration is sufficiently general in its terms to take the case at bar out of the rule, announced in the cases last referred to. The second count of the declaration here does not charge that any servant of the appellant was guilty of specific acts of negligence, but charges that the appellant itself carelessly ran and managed its electric sprinkling car. The second count of the declaration does not state in or by what specific acts the carelessness in driving or managing the car was manifested, whether by running at a greater rate of speed than safety or prudence required, or by improper and insufficient exercise of control on the part of the motorman, or by some other means. “Carelessness and impropriety are not descriptive of specific acts, but of a class of acts only, which may include an indefinite number of specific acts, each differing in its character from the others.” (Chicago, Burlington and Quincy Railroad Co. v. Harwood, 90, Ill. 425). We are of the opinion that there was sufficient evidence, tending to show that the appellant was guilty of such negligence as caused the injury, to justify a submission of the question of negligence to the jury. Accordingly, the judgment of the Appellate Court is affirmed. , Judgment affirmed.