Wallen v. North Chicago St. R. R.

Mr. Justice Adams delivered the opinion of the court. Appellee’s counsel contend that, as matter of law, on the facts in evidence, appellant was guilty of negligence, or want of ordinary care, which caused the accident, and therefore she can not recover. We are of opinion that whether the plaintiff failed to exercise ordinary care, and if so, whether such failure caused the accident, and also whether appellee exercised ordinary care, in view of the circumstances in evidence, were questions which should have been submitted to the jury. The east bound 'car on which appellant was a passenger had stopped for the purpose of permitting .appellant to alight. That the car had stopped must have been apparent to appellee’s employes in charge of the west bound car, on the hypothesis that they were looking ahead, as was their duty; and perceiving that the east bound car had stopped at a regular stopping place for taking on passengers, or allowing passengers to alight, they must have known that the car stopped for one of these purposes; A greater degree of watchfulness on the part of street railway companies is necessary at street intersections, and when approaching such intersections, than under other circumstances. Booth on Street Railways, Sec. 306. In Kelly v. Hendrie, 26 Mich. 255, the court (p. 261) say : “ If, as represented by two of plaintiff’s witnesses, the car was going at an unusual speed, the circumstance would have been of high importance if Mahan had been upon a street crossing, where it might have been the custom or the duty of the conductor to check or stop his car. We regard the case of C. C. Ry. Co. v. Robinson, 127 Ill. 9, as conclusive that it can not be said, as matter of law, that appellant was guilty of negligence, or want of ordinary care, in attempting to cross the tracks as she did, and also as conclusive that the question whether the appellee was guilty of negligence which caused the accident, should have been submitted to the jury. Counsel for appellee seek to distinguish the case cited from the present, on the ground that the plaintiff sued as administrator of a minor aged six years, and that negligence could not be attributed to a child of that age. The distinction is clearly untenable because, as stated by the court in its opinion, the jury found that the minor exercised ordinary care (although it would appear that such finding was unnecessary), and also because the law announced by the court in that case is not limited to minors but is stated as of general application. Booth on Street Railways, top p. 429, note 7. In Offutt v. Columbian Exposition, 175 Ill. 472, the court say of a motion to take a case from the jury: “ It is true that such motions are not to be .regarded with favor. The province of the jury must not be invaded (Frazer v. Howe, 106 Ill. 563), and when reasonable minds, acting within the limitations prescribed by the rules of law, might reach different conclusions, the evidence must be submitted to the jury.” We can not say that the evidence in the present case is such that from it reasonable minds might not reach different conclusions. If the case had been submitted to the jury on the plaintiff’s evidence, and the jury had found for the plaintiff, we can not say that the question whether the verdict should have been set aside on the ground that it was not sustained by. the evidence, would not have been a debatable question. In W. C. St. R. R. Co. v. Nilson, 70 Ill. App. 171, a verdict rendered for the plaintiff under somewhat similar circumstances was sustained. In Roberts v. C. & G. T. Ry. Co., 78 Ill. App. 526, the court say : “ A cause should not be withdrawn from the jury unless the testimony is of such a conclusive character as to compel the court, in the exercise of a sound legal discretion, to set aside a verdict returned in opposition to it (Ry. Co. v. Johnson, 135 Ill. 647), and we think it the better practice, in doubtful cases, to submit the issues to the jury, when, if upon full argument on motion for a new trial, the court becomes satisfied that the verdict is manifestly against the weight of the evidence, the court can set it aside and grant a new trial.” What is here said is equally applicable when the question is whether the verdict is sustained by the evidence. The judgment will be reversed and the cause remanded.