West Chicago St. R. R. Co. v. Tuerk

Mr. Justice Sears delivered the opinion of the court. From an examination of all the evidence, we are of opinion that it is sufficient to sustain the verdict. Indeed, it is not seriously contended that the verdict is against the weight of the evidence—the ground upon which a reversal of the judgment is sought being alleged errors in procedure, and the contention that the verdict is for an excessive amount. , If, as the jury might reasonably believe from the evidence, the gripman was aware of the position of the buggy, and yet continued to move his car at full rate of speed, while Sweeney was obliged to keep the buggy in the car tracks ahead of the car by reason of obstructions in the roadway, and if because of the rate of speed of the car and consequent-lack of control of it, the collision occurred, then the conclusion of negligence upon the part of appellant as a proximate cause of the injury, is fully warranted. The gripman testified that he was going at the full speed of the cable at the time of the collision. He testified that the buggy was turning into the car tracks when it was struck by the car. But other witnesses testified that the buggy was in the car tracks and was turning out when struck. Appellee testified that the gripman and the driver of the buggy had been talking together. Ilerzer, one of the witnesses called by appellant, testified : “When I first saw the buggy it was running at a high speed toward North avenue, on the right side of ' the street, outside of the track. The way I looked at it, it was more or less of a racing match, but he was trying to get ahead of the car, and it was gaining speed; finally there was some kind of obstruction—what I considered a pile of sand and tool boxes. 1 had been w’atching the buggy pretty close, and finally when it came to one point the buggy turned around and it suddenly got struck by the car at what I later saw was a pile of sand.” It is therefore apparent that the gripman .was perfectly aware of the relative positions of buggy and car. If, as some witnesses testify, including Swmeney, the driver of the buggy, the buggy was turning out of the tracks when struck, it is also apparent that to approach it so closely at the full speed of the cable was perilous. The evidence, though conflicting, is sufficient to establish negligence as alleged. If the driver of the buggy was also negligent, that fact would not relieve appellant, if appellant’s negligence was an efficient, proximate cause of the injury. N. C. St. R. R. Co. v. Dudgeon, 83 Ill. App. 528. The refused instruction would have told the jury in effect that merely because Swmeney, the driver of the buggy, knew that the car was traveling in the same direction, therefore the gripman was relieved from all duty to warn him of the close approach of the car. It would have been erroneous, and it was properly refused. Upon notice for a new trial appellant sought to show improper conduct upon the part of one of the jurors. It is not shown that the letter in question was written by the juror, but the contrary appears. It is only shown that some fifteen hours after the return of the verdict, a conversation took place between the juror and the attorney for appellee, which disclosed that the juror was at that time aware that a letter had been sent to the attorney. Matters thus occurring after the return of the verdict, can not be permitted to vitiate verdicts and necessitate new trials. We are not prepared to hold that the damages assessed are excessive. If appellee is to be credited, and if her physicians are truthful, she is permanently crippled. The evidence referred to in the preceding statement of facts is snificient to warrant the jury in measuring the damages at the sum fixed. The judgment is affirmed.