North Chicago St. R. R. v. Allen

Mr. Presiding Justice Windes, after making the foregoing statement, delivered the opinion of the court. The only points argued by appellant’s counsel in his brief are that for the failure of appellee to show ordinary care, the court should have instructed the jury to find for appellant, and that the court erred in modifying the instruction quoted in the statement, and given as modified as instruction ten. We are clearly of opinion that the evidence relating to the care exercised by appellee was such that it could not be said, as matter of law, he was not in the exercise of ordinary care for his own safety, but that this was a question peculiarly for the jury, on which they were fully instructed. Reasonable and fair-minded persons might well differ on this point in their conclusions on this evidence. We think the evidence sustains the verdict in this respect. Penn. Co. v. Frana, 112 Ill. 398; Ry. Co. v. Manning, 170 Ill. 421; Offutt v. Columbian Exp’n, 175 Ill. 473, and cases cited. The modification of instruction ten by the court ivas error. It should have been given as asked. While it may be said that the care which it was incumbent on appellant’s servant to exercise ivhen he saw that appellee was driving ahead of him on the tracks, was a higher degree of .care .than would have been required of him under some other circumstances, still ordinary care and prudence under the particular circumstances were all that were legally necessary to avoid liability to appellant. 1 Thompson on Reg., 396, n. 2, and cases cited; Booth on St. Rys., Secs. 305 and 309, and cases cited; Ry. Co. v. Ryan, 131 Ill. 474; Ry. Co. v. Manning, 170 Ill. 427-31; Roller v. Ry. Co., 66 Cal. 230; Ry. Co. v. Witten, 74 Tex. 202. But notwithstanding the error in this instruction we are of opinion, after the most careful consideration of the evidence, that with a proper instruction, the jury could not have reached a different conclusion than they did as to appellant’s negligence as to the rate of speed of its car, and that by reason thereof appellee was injured. We have set out with some particularity in the statement the evidence bearing upon the rate of speed of the car. Ro disinterested and fair-minded person could read the evidence without, in our opinion, reaching the conclusion that appellant’s car was being run at a high, reckless and unreasonable rate of speed, and that this is shown by the clearest preponderance of the evidence. There is practically no dispute that after the accident, the wagon, a long carpenter’s wagon, was thrown, by the force of the collision, from one track across another and partly onto the sidewalk, and that the noise of the crash was heard by at least five disinterested persons in their houses, some distance away, with closed doors and windows, and also that after the collision the car ran from 150 to 250 feet before it came to a stop. The testimony of the conductor that the first he knew that there had been a collision was when he was told by the motorman, and that it only made a little, gentle noise, and he felt no tremor of the car, might very properly have been disregarded by the jury. The motorman is very indefinite and conflicting in his statements of the speed. The witness Peak’s evidence, was certainly not of much weight, considering his contradictory statements testified to on rebuttal. Appellant’s own witness, Schlihimer, says he was 300 feet away, inside his house, with windows not open, and heard the crash of the collision. Had the speed of the car been slackened to a reasonable rate, we think it clearly apparent there would have been no accident. Another trial could only, in our opinion, result in a verdict for appellee. Ho complaint is, and could not reasonably be, made as to the amount of damages. A judgment should be affirmed where substantial justice on the whole is done. Lebanon, etc., Ass’n v. Zerwick, 77 Ill. App. 491, and cases cited; Ry. Co. v. Wilson, Id. 608. The judgment is affirmed.