Chicago City Railway Co. v. Roach

Mr. Justice Sears delivered the opinion of the court. It is contended by counsel for appellant that the verdict is against the weight of the evidence. In this behalf it is urged that it appears from the evidence that the collision was caused by carelessness of the police officer, who directed tae driver, Benson, to cross to the north side of Lake street; or by the carelessness of Benson in obeying the command when he was in a place of safety; or by the old track of the West Chicago Street R. R. Co., in which it is claimed Benson’s wagon stood before turning north, the rails of which track, it is argued, caused the rear wheels of the wagon to slide along to the east as the horses and the front wheels turned north, and thus brought the rear of the wagon into dangerous proximity to the curve of appellant’s tracks. It is also argued that appellee caused the injury through her own negligence in placing herself, it is claimed, in a position of danger.. And, finally, counsel urge in this behalf that to move a train at the rate of speed shown by the evidence here can not be held to constitute any negligence. The answer to all of these contentions is, that they together presented for the determination of the jury, upon the evidence here, two questions only, viz.: Whether there was negligence of appellant in moving its train at the speed shown, which operated as a proximate cause of the injury, and whether appellee was guilty of any contributory negligence. We are of opinion that the evidence warranted the jury in finding, as to each of these questions, favorably to appellee’s right of recovery. The jury might well find that appellee, in choosing a place by the side of the policeman stationed at the crossing, while she was waiting an opportunity to cross over Lake street, was not only not guilty of any contributory negligence, but was in the exercise of very commendable care. That appellant was guilty of negligence in moving its train at that place and under the conditions there existing, at the rate of speed shown, was also a fact which the jury might have found from- the evidence. Whether such rate of speed constituted negligence was a question dependent upon the surrounding circumstances, and was a question for the determination of the jury. The C. C. Ry. Co. v. Robinson, 127 Ill. 9; Rend v. C. W. D. Ry. Co., 8 Ill. App. 517; W. C. St. R. R. Co. v. Stoltenberg, 62 Ill. App. 420. In the case last cited, it appeared that the car was moving “About as slow as a man would walk.” This court, in passing upon the question of negligence there raised, said: “ Under the circumstances of the accident, the gripman being unable to tell that no one was waiting to come immediately from behind the wagon upon the crossing, it was a question for the jury whether appellant was not negligent in permitting its car to move toward the cross-walk at a rate of speed that prevented its being stopped ere it ran upon deceased.” Whether the gripman saw, or, if properly attending to his duty, should have seen the signal of the policeman; whether the wagon swung into the way of the train so suddenly that a collision was unavoidable if the car was moving at' any rate of speed; and whether the occupancy of the streets by teams was such as to make it the duty of the gripman to proceed with great caution and at such a slow rate of speed as would enable him to stop his train within exceedingly short distances, were all questions of fact upon which the jury passed in determining the negligence of appellant, and its relation as a proximate cause of the injury. . The evidence being sufficient to sustain the finding that appellant was negligent as charged, and that such negligence was a proximate cause of the injury, the negligence of the policeman or of Benson, the driver, if concurring, could not excuse appellant. The only instructions gi\ren which are complained of in the briefs are three, which are numbered 1, 2 and 3 for convenience: 1. “You are instructed as a matter of law that the question of whether or not the plaintiff exercised ordinary care for her personal safety before and at the time of the occurrence of the injury complained of, is a question of fact to be determined by you from the evidence. 2. “You are further instructed as a matter of law that the question of whether or not the defendant was guilty of negligence is for your determination upon all the circumstances and facts proven in the case. 3. “You are instructed as a matter of law that if you find from the evidence that the defendant has been guilty of negligence, and that such negligence caused the injury to the plaintiff complained of in the declaration, and that before and at the time of such injury the plaintiff wras in the exercise of ordinary care for her personal safety, then your verdict will be for the plaintiff.” The first and second of these instructions are undoubtedly correct as statements of the law, even if subject to the criticism invoked of giving too much emphasis to the power of the jury. We do not understand the decision in C. B. & Q. R. R. Co. v. Greenfield, 53 Ill. App. 424, as holding that the giving of such an instruction constituted reversible error. So particular is pointed out by counsel wherein the third of these instructions is faulty, nor do we discover any. In support of objection to it, the case of N. C. S. R. R. Co. v. Louis, 138 Ill. 9, is cited. Upon examination of that decision, we find nothing to support the objection. In the case under consideration the jury were very fully instructed as to the burden of proof and the rule requiring a preponderance of the evidence. It is complained that the court erred in refusing to give the following instructions, which we refer to as numbers 1 and 2: 1. “You are instructed, as a matter of law, that if you find from the evidence that the plaintiff in this case is entitled to recover, you should assess her damages at such a sum as would be a.just compensation to the plaintiff for the injury sustained as shown by the evidence in the case. 2. “If the jury believe from the evidence that the injuries complained of were received ■ as the result of the acts and doings of the policeman and the driver of the wagon, and without any want of ordinary care on the part of the gripman, then it is the duty of the jury to find in favor of the defendant.” The court properly refused each of these instructions, because each was sufficiently included and covered by other instructions given. The jury had been told that no exemplary damages could be awarded, and that such elements of damage only could be considered as had been shown by a preponderance of the evidence. They had also been instructed that if there was no want of ordinary care on the part of the gripman, and the accident happened as a result of circumstances over which he had no control, then there could be no. recovery. The court was not bound to. repeat these instructions. It is complained by counsel for appellant that the court erred in ruling upon the admission of certain evidence. There was no error in permitting . Dr. Moyer to testify as . to the condition of the eye. If appellee fiad abandoned all claim by reason of any permanent injury to the eye, yet that did not preclude proper inquiry as to temporary conditions, if related to the injury in question. The exclusion of, an answer to the following question was excepted to “ Standing where you say the car was, state whether or not, if the rig had remained as you saw it at that time, whether there was room for the car to pass without touching it % ” No harm could have resulted from its exclusion, for the witness was .permitted..to,show the projection of the car over the rail and the distance of- the wagon from the rail. Moreover, it was established by Benson, a witness for appellee, that there was room, for the car to pass before Benson moved to the north. An answer to the following question was excluded: “You made those answers on the proposition of fact assumed by him in his questions ? ” There ivas no error in such ruling, for the witness had already indicated that he did sobase his answers, and there was no occasion for repeating. In view of all the evidence as to the nature of appellee’s injuries, we are of the opinion that the judgment is not for an excessive amount. The judgment is affirmed.