West Chicago Street Railroad v. Nilson

Mr. Justice Gary delivered the opinion oe the Court, The evidence for the appellee warranted the conclusion by the jury that on a very dark night, November 30,1894,-at nearly seven f. m., the appellee attempted to cross Milwaukee avenue from the north to the south on the east crosswalk on Western avenue. Milwaukee avenue is a northwest and southeast street, and occupied by a double track cable line. A car was crossing that crosswalk, going northwest on the right hand track as the car was going. The appellee came near to it, waited for it to go by, undertook then to go on his way, passing behind it, and was knocked down and hurt by a car on the other track going the other way, of which car he had no warning. He sued and recovered, as, under such circumstances, was inevitable. Cars on a double track, passing each other at street intersections, where the one going hides from the pedestrian the one coming, make a case for a jury to treat as negligence. Chicago City Ry. v. Wilcox, 33 Ill. App. 450. And whether the failure by the pedestrian to anticipate such a method of operating the cars, and guard against it, is a want of ordinary care, is a question to which the answer of a jury is never in doubt. The argument here by the appellant is all upon the evidence, except complaint is made of the refusal of one instruction which was given in another, and the refusal of one that upon a certain hypothesis the appellee should have exercised “ the highest degree of vigilance and care for his own safety.” That is a degree of vigilance and care required only Avhere one party owes a duty to the other, as a passenger carrier to his passengers. An instruction should not deal in superlatives. The duty of the appellee was to exercise such vigilance and care as reasonably prudent and cautions persons exercise under like circumstances. Chicago, St. P. & K. C. R. R. v. Ryan, 62 Ill. App. 264. That is short of the highest reach of human endeavor. The judgment is affirmed.