West Chicago Street Railroad v. Ranstead

Mr. Justice Gary delivered the opinion of the Court. On the 28th day of February, 1894, the appellee, then in his fifty-fifth year, but with, so far as appears, mental and physical powers unimpaired by age or disease, left the hotel where he lodged between five and half past five o’clock p. ii.' to go north across Madison street, for his supper. His route was over the west cross-walk of Dearborn street. In the language of the clerk of the hotel, “he” (the appellee) “ was sober enough to walk, and drunk enough to be a little noisy,” which description of his happy condition is corroborated by the testimony of the proprietor of the hotel. When he reached the cross-walk, a street car of the appellant was standing on the track, and his own version of the accident, copying from the abstract, is as follows: “ The Madison street car, with reference to the west sidewalk of Dearborn street, was standing about ten feet west on Madison. As I stepped over the first rail, the car struck me and throwed me under the car and rolled me there about twenty feet—ketched me as I was stepping over the first rail and was just going on the track. As I was stepping over the first rail, the south rail, with this foot first and was going with the other, it caught me in the hip and throwed me against another gentleman that was walking side of me.” To a man attentive to his surroundings, and in the exercise of ordinary care, no such accident could have happened. The home of the appellee had been in Chicago nearly all his life. He knew, or if he had given a thought to the matter, would have known, that the car was stopped only momentarily. Thus far I have written my own opinion, but the majority of the court does not agree to the conclusion at which I arrive. In the opinion of my colleagues, the question of care by the appellee was for the jury—that in considering it, they might take into consideration the usual conduct of ordinarily prudent and careful persons in threading their way through the crowds, and crossing the streets thronged by the multitudes of the great bustling city. Also, that other testimony presents the manner of the accident more favorably to the appellee than does his own. A policeman stationed at the crossing, testified that the car was about six feet west of the crossing, and that as the appellee “ stepped onto the track the car shoots forward, and Eanstead makes a plunge to get off the track, * * * and the car struck Eanstead and knocked him against another man,” and Eanstead fell under the car. It is in evidence that to cross Dearborn street, cars—they are cable cars—have to make the crossing by the momentum gained before reaching the cable by which another line of cable cars is run upon Dearborn street, at a right angle to the Madison line. What influence that necessity had upon the care required of the appellant not to injure pedestrians at the crossing— or rather, whether the appellant did in fact exercise such care—was another question for the jury. Paraphrasing the language in Eobinson v.'Pioche, 5 Cal. 461, a drunken man is as much entitled to the exercise of such care as a sober one, and much more in need of it. We all agree that no error is in the record, if upon the evidence the verdict of the jury was justifiable. The jury awarded ten thousand dollars. After a remittitur of one-fourth of the verdict—probably as a condition of entering judgment for the appellee—the court entered judgment for the other three-fourths. It is the judgment of this court that those fractions should be exchanged, and that if within ten days after this opinion is filed, the appellee enter another remmittitur of five thousand dollars, the judgment be affirmed for twenty-five hundred dollars; otherwise that the judgment be reversed and the cause remanded; in either event at the cost of the appellee.