Rend v. Chicago West Division Railway Co.

Bailey, J. The court, by modifying the defendant’s second and third instructions, required the jury to find from the evidence whether the injury to Cornell resulted from the negligence of the plaintiff or from that of the defendants; telling them that in the former case their verdict should be for the defendants, and in the latter for the plaintiff. The language in which these questions were submitted was such as to clearly imply that said injury must have been the result of the negligence of one party or the other solely, and that it could not have resulted from the joint operation of the negligence of both. There is evidence in the case tending to the conclusion that the driver of the car and the driver of the wagon were both at fault. Each seemed desirous of reaching the place in the rear of the line of vehicles in advance of the other, and both started for that point at about the same instant. The wagon, though much nearer to the line, was directed by the policeman on duty to wait, and it appears that under the circumstances disclosed by the evidence, the ordinances of the city of Chicago gave the car the right to pass first. On the other hand, the driver of the car saw, or by reasonable attention to what was passing before him might have seen, that the wagon was actually moving forward with the apparent determination to get in ahead, and that it was so far in advance of the car that if the attempt was persisted in the car must yield, and allow the wagon to pass first, in order to avoid a collision. To press forward under such circumstances, at the- peril of the safety of the passengers on the car, was inexcusably negligent. The fact that under the ordinance the car had the prior right-of-way, was no sufficient excuse. Even though the driver of the wagon may have been in the act of violating an ordinance of the city, the car-driver was not justified in asserting his rights under the ordinance by force. It was his duty to so manage his car, in-view of all the circumstances by which he was surrounded, as to avoid, so far as was reasonably within his power, a collision with other vehicles passing on the street. The remedy for a violation of the ordinance was by enforcing the penalty which the ordinance prescribes. It was not necessary for the. jury to find that the injury to Cornell was wholly the result of "the negligence of the car-driver, in order to justify a verdict for the defendants. If it resulted from the joint operation of the negligence, of both drivers, the verdict should have been the same. In that case both parties would have been responsible for the injury, and one party, after having been compelled to respond in damages to the person injured, could not call upon the other party to contribute all or any portion of the damages so paid. The law will enforce no contribution as between joint tort-feasors. The instructions, then, should have submitted to the jury the question of the joint negligence of the two drivers. ^Instead of doing this, they were so framed as1 to impliedly exclude that view of the case from their consideration. For the error in giving to the jury the defendant’s second and third instructions, as modified, the judgment will be reversed and the cause remanded. Judgment reversed.