O'Callaghan v. Dellwood Park Co.

Mr. Justice Carter delivered the opinion of the court: Appellant contends that the trial court erred in giving two instructions at the request of appellee, holding, in effect, that it was the duty of the appellant, in operating the scenic railway, to exercise‘the highest degree of care and caution for the safety of its passengers and to do all that human foresight and vigilance could reasonably do, consistent with the mode of conveyance and the practical operation of the railway, to prevent accidents to passengers while riding on its cars. This is the rule laid down in this State as to common carriers. (Parmelee Co. v. Wheelock, 224 Ill. 194; North Chicago Street Railroad Co. v. Polkey, 203 id. 225; West Chicago Street Railroad Co. v. Tuerk, 193 id. 385; Chicago and Alton Railroad Co. v. Pillsbury, 123 id. 9.) We have also held that persons operating passenger elevators in buildings are charged with the same high degree of care. (Hartford Deposit Co. v. Sollitt, 172 Ill. 222; Chicago Exchange Building Co. v. Nelson, 197 id. 334; Steiskal v. Field & Co. 238 id. 92.) In Treadwell v. Whittier, 80 Cal. 574, the court, in discussing the measure of care required of persons operating elevators in buildings for the carrying of passengers, stated that “the utmost care and diligence must be used by persons engaged in such employments to avoid injury to those they carry. • The care and diligence required is proportioned to the danger to the persons carried. In proportion to the degree of danger to others must be the care and diligence to be exercised. Where the danger is great, the utmost care and diligence must be employed. In such cases the law requires extraordinary care and diligence.” This doctrine was quoted with approval by this court in Springer v. Ford, 189 Ill. 430. Why is not this rule applicable to those operating-cars upon a scenic railway, such as the one here in question? The passengers carried therein are subject to great risk of life and limb. The steep inclines, sharp curves and great speed necessarily are sources of peril. The argument of appellant that the character of this scenic railway was of itself notice of the danger to its passengers ; that its presence and operation involved no danger to those who kept away from it; that in this regard it differed from steam or electric railways or passenger elevators in buildings, and that therefore such a railway should not be held a common carrier, does not appeal to us. Should the motive which causes a person to take passage make any difference as to the degree of responsibility with which the carrier is charged ? Passenger elevators are frequently operated in buildings in order to convey persons to some vantage point where they can overlook a great city or some other object of interest, and trips on electric cars arq often made solely for pleasure. The precise question now under discussion has not been decided by this court, and o„ur attention has not been called to any case where the degree of care and responsibility resting upon those managing a railway of this kind has been considered. The nearest in point, perhaps, is Knottnerus v. North Park Street Railroad Co. 17 L. R. A. (Mich.) 726. That was as to the operation of a roller coaster, and the street railway company, while it owned the amusement park where the coaster was being operated, did not own or operate the device itself. Many of the authorities cited by appellant discuss only the responsibility and degree of care required of the managers and operators of ordinary places of amusement, and not the care required in the operation of scenic railways or other amusement contrivances in the nature of common carriers. (See Williams v. Mineral City Park Ass. 5 Am. & Eng. Ann. Cas. 924, and note; Scanlon v. Wedger, 16 L. R. A. 395, and note; Brotherton v. Manhattan Beach Improvement Co. 33 id. 598; Hallyburton v. Burke County Fair Ass. 30 id. 156.) We think, not only by fair analogy but on reason and sound public policy, appellant should be held to the same degree of responsibility in the management of the railway in question as a common carrier., „ At the close of plaintiff’s evidence, and also at the close of the case, counsel for the appellant moved to instruct the jury to find for the defendant on the ground that there was no evidence to support the charge of negligence as made in the declaration. Appellant insists that the recent case of Lumsden v. Thompson Scenic Railway Co. 130 App. Div. (N. Y.) 209, upholds its contention on this question. We do not deem that case in point, as there no unusual or extraordinary motion of the car was shown by the proof, and there was no evidence that anything happened upon the trip which was not usual and made necessary by such ordinary motion. Here there was a sudden stop testified to by appellee and his companion, caused, apparently, by something on the track. It is very clear from the testimony that this was an unusual occurrence. A presumption of negligence has been held to exist against the carrier in cases where the accident has been caused by a sudden jerk of the train. Chicago City Railway Co. v. Rood, 163 Ill. 477; Dougherty v. Missouri Railroad Co. 81 Mo. 325. If the injury of a passenger is caused by apparatus wholly under the control of a carrier and furnished and managed by it, and the accident is of such a character that it would not ordinarily occur if due care is used, the law raises a presumption of negligence. This presumption arises from the nature of the accident and the attending circumstances, and not from the mere fact of the accident itself. (Barnes v. Danville Street Railway Co. 235 Ill. 566; Chicago Union Traction Co. v. Giese, 229 id. 260; Chicago City Railway Co. v. Rood, supra.) We think the proof offered on behalf of the appellee brings this case squarely within the rule laid down in these decisions. Appellánt was charged with the responsibility of a common carrier. Appellee had paid his fare and was riding in a car of the railway in charge of appellant. The testimony on behalf of appellee tends to show that he was using due care and that the injury was caused by apparatus wholly under the control of appellant and furnished and managed by it, and that the accident was of such character that it would not ordinarily occur if due care had been used by appellant in the management of its railway. This is sufficient prima facie proof of negligence to impose upon appellant the onus of rebutting it. On this proof the law raises a presumption of negligence. Counsel for appellant earnestly insists that these authorities do not apply in this case, and bases his contention, as we understand his argument, on the fact that the evidence of appellee and his companion, Kirby, is so unreasonable that it should be rejected. Counsel insists that the proof shows that the seven cars on the scenic railway at the time of the accident were running about ten seconds apart, and that if the car carrying the appellee and Kirby had been stopped or checked, as testified to by them, the car following would have bumped into it. The argument is also made that if the car in which appellee was riding had been slowed up or stopped, as they testified, the car, being on a curve at the time of the accident, would not have been able, from the grade, to gain enough motion to reach the end of 'the line. Appellant insists in this connection that appellee could not have been thrown out of the car, as claimed by himself and Kirby; that they must have been standing up in the car and scuffling, because Kirby, when the car reached the end of the line, had appellee’s hat in his hand. No direct testimony supports such a conclusion and we do not think it can be fairly inferred from any evidence in the record. Conceding, for the sake of the argument, that the testimony of appellee and his associate might for any reason be improbable, we cannot on that account disregard it. In the recent case of Zetsche v. Chicago, Peoria and St. Louis Railway Co. 238 Ill. 240, we considered this identical question, and we there said (p. 244) : “The Appellate Court and the trial judge are required by the law, upon the question being properly raised, to take into consideration the element of improbability, and if either regards the verdict as clearly against the preponderance of the evidence a new trial should be awarded. We cannot, upon consideration of this motion, reject testimony unless it is contrary to some natural law, as, for example, evidence that on a certain occasion the sun at noontime in this latitude cast a shadow to the south.” It appears from the evidence that the rails upon which these cars ran were greasy from the oil and grease that fall from the cars and that the bearings of the cars were frequently oiled. We cannot say from the record before us that it would be contrary to the laws of nature, even if,the car came to a full stop, for it to move on again on account of the grade and without being bumped by the car coming next behind it. The proof most favorable to. the appellee, on consideration of the motion to find for the appellant, stands alone. We can consider nothing else. Libby, McNeill & Libby v. Cook, 222 Ill. 206; Pronskevitch v. Chicago and Alton Railway Co. 232 id. 136; Reiter v. Standard Scale Co. 237 id. 374. The motion for a peremptory instruction was properly denied. The judgment of the Appellate Court will be affirmed. ■ Judgment affirmed. Cartwright and Dunn, JJ., dissenting.