Metropolitan West Side El. R. R. v. McDonough

Mr. Justice Windes delivered the opinion of the court. It is claimed that there was error, first, in entering judgment upon. the verdict finding “ the defendants guilty; ” second, in refusing certain instructions and in modifying others; third, that the verdict is contrary to the evidence; and fourth, that defendant in error was not entitled to recover under the law and the evidence. Under the last contention ii is claimed that the Eailroad Company had nothing to do with the construction of the road, except to determine how much had been done from time to time, until long after the accident, and that the servants of the sub-contractor were not the servants of the Eailroad Company. The facts in this case, as will be seen from the foregoing statement, in so far as this contention is concerned, are analogous to the facts in case No. 8540, between this Railroad Company as plaintiff in error, and one Dick, defendant in error (p. 40, this volume). We refer to the opinion in"that case by Mr. Justice Adams (speaking for the court), for a full discussion, review of the authorities, and a decision of this question. There was no error of which the Eailroad Company can complain in the entry of judgment against it on the verdict of the jury finding “ the defendants guilty.” As we have seen, the Steel Company, under the direction of the court, was found not guilty prior to the final verdict, and the other two defendants in the case do not appeal to have been served with process, and were not before the court by appearance or otherwise. The error, if one, did no injury to the Eailroad Company, and was therefore without prejudice. The court refused the fourth instruction as asked by plaintiff in error, as follows : “ The jury are instructed that the burden is upon the plaintiff in this case to prove what caused the bolt .in question to fall. Therefore, if the plaintiff has failed to prove by the evidence in this case what caused the said bolt to fall, and that the said bolt was caused to fall by the negligence of the defendant, The Metropolitan West Side Elevated Railroad Company, then the jury should find the defendant, The Metropolitan West Side Elevated Railroad Company, not guilty.” But the court modified it by striking out ■ the words, “what caused the bolt to fall, and that the said bolt was caused to fall through or bv reason of,” and inserted in lieu thereof, the words, “ that the said bolt fell through or by reason of.” We see no error in the modification as made by the court. It was not necessary for the jury to find what caused the bolt to fall in order to charge the Railroad Company with negligence. It was enough, as will be shown later, as to this point, for the jury to find that the bolt fell, and it was for the Railroad Company, in order to shield itself from the charge of negligence, to explain why it fell. This was not attempted. The court refused to give the elexmnth and txvelfth instructions asked by plaintiff in error. They need not be set out, as the eleventh is, in substance, covered by the first and second instructions given on behalf of plaintiff in error, and the substance of the twelfth is covered by the first, second, third and fourth instructions givbn. The court refused to give instructions numbered thirteen and fourteen, asked by plaintiff in error, which are as follows: “ 13. The jury are instructed that to enable the plaintiff to recover in this case, it must appear, by a preponderance of the evidence, that the negligent act or acts complained of were the proximate cause of said injuries. Therefore, if the jury believe from the evidence that the negligent act or acts complained of were not the proximate cause of said injuries, that is, that said acts xvere such that the injury to plaintiff might not have been foreseen or expected as a result thereof, then the jury should find the defendant not guilty. “ 14. Even if the jury believe from the evidence that the defendant, the Metropolitan West Side Elevated Railroad Company, xvas guilty of negligence, as charged in the declaration, yet, if the jury believe from the evidence that subsequently to such negligent acts a new cause intervened sufficient to stand as the cause of the injury complained of, then the former must be considered too remote, and the jury should find the defendant, Metropolitan West Side Elevated Railroad Company, not guilty.” There was no error in refusing the thirteenth instruction for two reasons : First, because it is in substance covered by instruction number one given, and, second, because the definition therein contained of proximate cause is not accurate. We think there was no error in refusing the fourteenth instruction, because there is no evidence of any new and intervening cause on which to base the instruction in that regard. The evidence as to two boys on the structure is not sufficient to show a new and intervening cause. We are of opinion that the evidence of negligence on behalf of plaintiff in error was sufficient to justify the court in submitting the case to the jury, and we can not say that the verdict is manifestly against the evidence in that regard. Mo claim is made, and none could be made under the evidence, that defendant in error did not exercise ordinary care. There is no evidence from which it can be said that the boys seen on the elevated structure caused the bolt to fall. The only witness who testifies to having seen them, says they were about in the center of the street, above the center of Morgan street, and thus they were necessarily quite a distance from where the bolt was which fell upon defendant in error. Besides, it is not shown what they were doing. And even if this were not so, it appears from the evidence that the bolt in question was such as was used in the track-laying, which was done by the sub-contractors, for whose actions the Railroad Company is responsible. The jury was justified from the evidence in finding that the bolt must have been left lying loose upon the elevated structure, and that so doing was a negligent act, and that it was also negligence of the sub-contractors as well as that of the Railroad Company, under the supervision and direction of whose engineer the work was done, in not keeping boys off the structure, where they were liable to knock down anything lying loose upon the structure. Moreover, we think the jury was justified in finding from the evidence, which shows that the workmen were engaged in track-laying at about three blocks distant from the place of the accident, that the bolt was caused to fall by some jarring of the structure—either by the operation of heavy machinery used in hoisting the rails, or by the striking of large and heavy sledges by the workmen upon the structure in the process of the track-laying, either of which things, common experience with work of this character teaches, is the usual, natural and ordinary course of procedure. But if we are wrong in all these respects, still we are of opinion, the evidence showing, as it does, that the construction of the railroad was done by the contractor or his sub-contractors under the direction and supervision of the engineer of plaintiff in error, that this bolt was such as was used in the track-laying at the point in question; that defendant in error was passing along the sidewalk of Morgan street, in the exercise of ordinary care for her safety, and the bolt fell upon her from the railroad structure, causing the injury; this proof made a prima facie case of negligence, which it was incumbent on plaintiff in error to meet, and explain how the bolt came to fall. This explanation was not made, and in its absence we think the jury was justified in finding the verdict of guilty. R. R. Co. v. Cotton, 140 Ill. 486; Hart v. Washington Pk. Club, 157 Ill. 14, and cases cited; Lowery v. Manhattan Ry. Co., 99 N. Y. 158; Volkmar v. Manhattan Ry. Co., 134 N. Y. 418, and cases cited. Being of opinion that there is no reversible error in the record, the judgment is affirmed.