Canfield v. North Chicago St. R. R.

Mr. Justice Waterman delivered the opinion of the court. In passing upon a motion made in a trial court to direct a verdict for the defendant, if the evidence is such that reasonable men of fair intelligence might draw from it different conclusions as to whether facts necessary to create a liability of the defendant had been established, then the motion should be overruled and the evidence submitted to the jury. Upon such a motion, all that the evidence tends to prove and all just inferences to be drawn from it in the plaintiff’s favor, must be considered as having been established by him. Wabash Railway Co. v. Brown, 162 Ill. 484; McGregor v. Reid Murdoch Co., 178 Ill. 464 and 471; Linnertz v. Dorway, 175 Ill. 508-513; Wallen v. North Chicago Street Railway Co., 82 Ill. App. 103-107-108. Pedestrians and vehicles of all kinds have the same right to the use of the street as has a street railway company; the only distinction is, that as its cars run upon a fixed track, other persons must reasonably give way to it while passing along such track; but because of the greater speed with which the vehicles of a street railway move, and the little noise attending their progress, it has frequently been held that it is negligence in them to propel cars through public streets after dark, unless they are provided with lights sufficient to notify others of their coming and put them on their guard against collision, and also that it is the duty of street railway companies to give warning, by sounding a bell or otherwise on their approach to public street crossings. Booth 'on Street Railways, Sec. 299; Rascher v. Railway Company, 90 Mich. 413; Calumet Electric St. Ry. Co. v. Lynholm, 70 Ill. App. 371, 372. In the present case it was, at least, a question of fact for the jury whether there was any headlight upon the plaintiff’s north-bound car just before and at the time it struck the plaintiff, and whether the failure to have such head-’ light, if such there were, was the cause of the injury to the plaintiff, as also it was a question of fact whether any gong or bell ought to have been, and if so, was, sounded as the defendant’s car approached Huron street, and if no such warning was given, whether the failure so to do was negligence, and if so, whether the injury to plaintiff was the result of such negligence. The plaintiff had a right to show, not only what was required by the ordinances of the city in this regard, but what was the usual practice of the defendant in respect tb its cars running on Clark street, and thus, what, by its own conduct, the plaintiff had reason to expect would be its practice in regard to headlights, and the giving of warning of the approach of its cars on the night in question. Whether the plaintiff was guilty of negligence in getting off the car in the manner he did, while it was in motion, was a question of fact to be submitted to the jury. N. C. St. Ry. Co. v. Wrixon, 150 Ill. 532, 533; N. C. St. Ry. Co. v. Wrixon, 51 Ill. App. 307-312; Springfield Railway Co. v. Hoeffner, 175 Ill. 634-638; Beach on Contributory Negligence, 3d Ed., Sec. 292. So, too, the question whether the plaintiff was guilty of contributory negligence in attempting to cross the street to the sidewalk at the place where he did, was a question of fact for the jury. Beach on Contributory Negligence (3d Ed.), Sec. 288a; Cicero Street Railway Co. v. Meixner, 160 Ill. 320-328. The question of what the proximate cause of .the injury to plaintiff was, was a question of fact to be determined by the jury, under proper instructions from the court. Pullman Palace Car Co. v. Laack, 143 Ill. 242-259. Upon the trial, the court refused to admit in evidence the following rule of the company: “Cars running in different directions should not stop abreast of each other, except at stations, or when transferring passengers. When cars are passing one another the drivers should slacken the speed of the horses and gently put on the brake to guard against running into persons who may be crossing the streét in the rear of either car.” It is insisted that this rule should not have been admitted, because the cars passing each other at the time of the accident were not drawn by horses, but propelled by steam power, being what are known as cable cars; the rule, in question having been made in 1884. The rule appears to be a very proper one, made not only for the benefit of the company, but the protection of the public. It is well known that in 1884 the defendant company was operating by horse power many cars, the motor power of which has since been changed to steam or electricity. It was neither shown nor claimed by the defendant that the motormen of electric and cable cars were instructed that this rule did not apply to them, or that there was in this regard, any rule for cable or electric cars variant from the one under consideration. Under the circumstances, it was at least a question of fact for the jury, whether such rule of the company did not apply to its cable cars running on Clark street. That the rules of said company are admissible in connection with other evidence for the purpose of determining whether there was not negligence in the management of its cars, is well settled. Upon the trial a portion of the deposition of Campbell E. Babcock was read. The deposition as taken, read as follows: “ My attention was attracted to a south-bound cable car and a north-bound car.” Directly following this were the words, “ by the fact of the comparatively little noise they made and by the fact of neither ringing its bell upon approaching each other.” The words beginning “being by the fact,” the court refused to allow to be read. We see no reason why such testimony was not admissible. It was a mere statement that the cars made comparatively little noise and that neither rang its bell when approaching the other, and that the little noise and the failure to ring a gong attracted his attention. The judgment of the Superior Court is reversed and the cause remanded.