Webb v. Chicago City Ry. Co.

Mr. Justice Horton delivered the opinion of the court. For the purposes of this case and in this opinion we shall assume that' the employe of defendant in charge of the grip-car was guilty of negligence. There is, no evidence to establish the averments in the second and third counts in the declaration which charge defendant with recklessly, wantonly and willfully running its train against the plaintiff, or with failing and neglecting to provide its cars with serviceable brakes, etc. Neither do plaintiff’s attorneys in their brief and argument contend that the testimony establishes any liability under the averments in said second and third counts. The question then is, did the testimony show that the plaintiff was guilty of negligence which contributed to the injury ? The rule is now well settled in this State that if he was, he can not recover. At the April term, 1858, the Supreme Court of this State reversed this rule which had theretofore obtained and substituted the rule of comparative negligence. G. & C. U. R. R. Co. v. Jacobs, 20 Ill. 478. But at the November term, 1885, the Supreme Court announced the rule of contributory negligence as being the law of this State, and renounced the rule of comparative negligence. C. I. & S. Co. v. Martin, Admx., 115 Ill. 358. Since that case this rule has -been repeatedly announced, and may now be considered as being the settled law of the State. L. S. & M. S. Ry. Co. v. Hessions, 150 Ill. 546, 556; N. C. S. R. R. Co. v. Eldridge, 151 Ill. 542, 549; Ch. City Ry. Co. v. Canevin, 72 Ill. App. 81, 84. We are unable to escape the conviction that as regards the defendant the plaintiff was guilty of negligence which contributed to the injury. Plaintiff was not crossing the street at a regular street crossing. There was no car or vehicle upon the street in that immediate vicinity at the time of the accident except the grip-car which struck the plaintiff. Tet he says that he did not hear this car at all. Why ? It is a matter of common knowledge that if a man possessing the sense of hearing tries to do so, he can hear a grip-car train a considerable distance. Plaintiff says that he could at that time hear street cars a long distance. It is a fact of general knowledge that where one faculty is impaired or destroyed, the other faculties become especially acute. For twenty-five years this unfortunate plaintiff had been deprived of his sense of sight. He had therefore been compelled to depend largely for his personal safety upon his sense of hearing. This accident was in the night time when there were but few vehicles upon the street. If he had paid attention, it must be that he would have heard the approaching train. He may have been put off his guard by the call to him by some party unknown to the record in this case. He says he met that person near the street corner; that he walked about six feet further, when that person said to him, “Far enough; all right there, Billy; now go across; nothing coming, Uncle Billy.” He probably was misled by this. If he was, and this caused him to be careless as to listening to hear the approaching train, defendant is not to be charged therewith. As a question of law it makes no difference what caused the plaintiff to be negligent or careless. It seems certain that the man who told plaintiff it was all right was careless. But that can not be imputed to defendant. The plaintiff started to cross the street after the unknown party told him it was all right. He says: “ I got about the middle of the street and somebody hollered from the opposite corner, ‘ Look out.’ I stopped and partly turned around, partly turned sideways to listen to what he said, and I was struck by the car.” Upon cross-examination this question was asked: “ When he said ‘ Look out,’ had you known that you were in the middle of the track ? ” He answered: “Iknew I was in the middle and I turned off this way (indicating southwest), and I thought I was off far enough. I turned to listen to what he meant. I listened to hear if anything was coming and I didn’t hear anything.” His sense of hearing at that time was good. He says he could hear street cars running a long distance. Again the plaintiff was influenced in his actions by a call from some person on the street, so that he stopped and stood in the middle of the track, immediately in front of the approaching train. That was negligence which contributed to produce the injury. The defendant can not be held to be responsible for the advice of the two men who spoke or called to plaintiff. The acts of the plaintiff undoubtedly contributed to produce the injury. As to the defendant, those acts constitute negligence. Therefore, under the rule of law in this State, the plaintiff can not recover. The judgment of the Superior Court is affirmed.