West Chicago St. R. R. Co. v. Callow

Mr. Justice Waterman delivered the opinion of the court. While the mere fact that a street car is running fast does not establish that it was being run in a negligent manner, the rate of speed may be considered in connection with other circumstances to determine the question of negligence. Neither the motorman of an electric car nor the driver of any vehicle is obliged to be all the while on guard against unreasonable conduct on the part of others on the street. All persons are in respect to others bound to use at least ordinary care; what constitutes such care depends upon the circumstances which call for its exercise. The motorman of a street car knows that passengers are to be expected at street crossings; that vehicles may conceal an approaching car from a street pedestrian; usually, he is aware that some portions of his route are more occupied by footmen and carriages than others. All persons have a right to be in, to pass along and over the highway. Each must exercise ordinary care for the safety of others, guiding his footsteps and his carriage with reference not only to his own but the safety of others. It follows from this that what conduct is or is not negligence is a question of fact, and that a court ought not to instruct a jury that certain acts do or do not constitute negligence. At the instance of the plaintiff the court gave the following instruction: “ The court instructs the jury that it is not negligence in and of itself for a person to cross in front of an approaching street car, but that they have the right to take into consideration all the circumstances surrounding the case.” In Lineberg v. Chicago City Ry. Co., 83 Ill. App. 433, an instruction to the effect that an attempt “ to board ” a street car “ while the car was in motion” did not “ necessarily charge the plaintiff with contributory negligence as a matter of law ” was condemned and the judgment therein reversed because thereof. Instruction telling a jury that certain acts do or do not constitute negligence have been frequently declared erroneous. Myers v. Indianapolis & St. Louis Ry. Co., 113 Ill. 386-389; Pennsylvania Co. v. Frana, 112 Ill. 398-404; North Chicago Street Ry. Co. v. Williams, 140 Ill. 275-281; East St. Louis and St. L. Electric St. Ry. Co. v. Wachel, Adm’r, 63 Ill. App, 181; Chicago City Ry. Co. v. Dinsmore, 162 Ill. 658-660; Illinois Central Ry. Co. v. Griffin, 184 Ill. 9. We do not regard the instructions given as requested by the defendant in this case as doing away with the misleading and frequently condemned instruction as to what does not constitute negligence. The second instruction given at the instance of the plaintiff upon the subject of damages attempts to express a correct rule but is in several respects badly worded and might mislead. We do not regard the refusal of the court to give the following instruction as error: “The court instructs the jury that the deceased was just as much in duty bound to look out for the defendant’s approaching car,, and to avoid colliding with the same, at the time and place in question, as the motorman in charge of the defendant’s car was to look out for and to avoid colliding with the deceased. One was not held, in law, to any higher degree of care than the other.” The instruction, if given, might have misled. While motorman and pedestrian are each bound to exercise ordinary care, it does not follow that conduct amounting to reasonable care in one trundling a baby carriage is for another having control of an electric car weighing six tons and moved by a power capable of propelling it eighteen miles an hour. We do not regard the following statement of counsel in his closing address as misconduct: “ Unless street car companies are bound to take ordinary precautions where passengers are getting on street cars or standing at street crossings, no one can tell the extent of injury to life and limb.” The judgment of the Superior Court is reversed and the cause remanded.