Lind v. Beck

Moran, P. J. An action was brought by appellant to recover damages for the negligent killing of a boy about nine years of age. The boy was run over by a horse and grocery wagon driven by appellee. The evidence tended to show that appellee was driving north on Wells street, and when he came to the crossing of Chicago avenue he turned west into the street, keeping to the left hand on the south side of the street; that a horse car was standing on the track on Chicago avenue; that appellee drove through the space between said horse car and the south sidewalk at a rapid pace, and struck deceased, who was running across Chicago avenue toward the' south, just after he passed the west end of the horse car, and dragged him along for some distance. From the injury received the boy died. When the plaintiff’s evidence was closed, the court instructed the jury to find for the defendant. We think a question was presented which required the case to be submitted to the jury. The defendant was driving on the wrong side of the street in violation of the law of the road. Eliott on Roads and Streets, 618, 620, Sec. 77, Chap. 121, R. S. The mere fact that he was on the wrong side of the street would not, of itself, make him liable, if the negligence of the boy was of such a character as to relieve appellee under the rules of law; but whether the boy was guilty of negligence in running across the street behind the car as he did, and how his negligence, if any, compared with appellee’s, were questions of fact for the jury to decide in view of all the evidence in the case. Parties using the streets owe to each other the duty of exercising reasonable care. What is reasonable care in any given case is a question for the jury in view of all the circumstances of the case. Where inferences of fact are to be drawn from evidence, they must be drawn by the jury. So, where the inference to be drawn is disputed, as where it may be contended that the facts will equally support one inference or another, the court is not at liberty to take the case away, but must submit it to the jury to determine which is the correct inference of fact to be drawn from the evidence. Rice v. Illinois Central R. R. Co., 22 Ill. App. 643, and cases there cited; Wight Fire Proofing Co. v. Roczekai, 30 Ill. App. 266. The case should have been submitted to the jury under proper instructions. On the trial in the court below a section of the ordinance of the city, regulating the speed of horses and vehicles at street crossings and corners, was offered in evidence by appellant, and was excluded by the court. As the evidence tended to show that appellee was driving at a greater speed than that allowed by the' ordinance, the evidence was relevant upon the question of negligence, and should have been admitted. For the error indicated the judgment will be reversed and the case remanded. Reversed and remanded.