Merchant v. South Chicago City Ry. Co.

Mr. Justice Freeman delivered the opinion of the court. It is urged by appellant’s counsel that in view of the speed at which street railway companies are in the habit-of operating cars passing each other on parallel tracks at frequent intervals, the fact that the space between the cars when so passing on such tracks is not more than from eight to eleven inches, and that, as it is argued, this space may be reduced by the swaying of the cars, constitutes negligence so “ glaring, manifest and gross ” that the evidence should be submitted to the jury. But it has never been considered, so far as we are advised, that it is necessarily, and as a matter of law, negligence, for a railroad company to so construct its tracks that its cars pass in close proximity to each other. Carriers are held to the highest degree of care for the safety of their passengers, but they are not required to make it impossible for passengers to expose themselves to danger. Mor is the company required to adopt any particular method of construction, and whether the manner of construction is proper or not, is not- a question to be submitted to a jury. One- jury might find the- construction proper and another find it improper. C. & E. I. R. R. Co. v. Driscoll, 176 Ill. 330-334, and cases there cited. In the case referred to, it was contended that the failure of a company to erect a butt-post at the end of a stub-switch in a switch-yard, was evidence of negligence which should be submitted to a jury; but the court held otherwise, and it is said that the only question proper to be submitted to a jury in such cases is, whether the premises as they existed at the time of the injury were reasonably safe. There is and can be no question here that the deceased would have been carried in safety, as were the other passengers, had he retained his seat inside the car, or had he refrained from projecting his head over the gate protecting the platform, and beyond the outside line of the car on which he Was riding. In other words, there is no room for question that the deceased, riding as a passenger on that car as it was used and operated at the time, was entirely safe from danger of collision with a car on the other and parallel track. Negligence becomes a question of law and not a question for the jury, where, from the facts admitted or conclusively proved,there is no reasonable chance of different minds reaching a different conclusion. Wabash Railway Company v. Brown, 152 Ill. 484-488. It is insisted, however, that appellant had the legal right to have the verdict' of a jury upon the question whether the deceased was or ivas not in the exercise of ordinary care, or was guilty of contributory negligence. As we have said, there is no proof here of any breach of duty by the carrier toward the deceased. We are compelled to conclude also that there is no room for honest difference of opinion among reasonable minds that the deceased was guilty of negligence contributing to the accident, and was himself wanting in ordinary care. He was standing in a position of safety, looking forward toward the east-bound car, which be must or ought to have seen approaching. If he did not know, he should have known, that the distance between the cars in passing would be small. Gongs were sounded in the usual manner, both on the car upon which he was riding and that which was approaching. Yet in spite of all the warning which sight and sound could give him, he extended his head outside of the railing protecting the platform on that side, and held, it there in front of the other car. The joint speed of the two cars approaching in opposite directions was probably double that of either one. Whether the deceased miscalculated that speed, or in a moment of forgetfulness, because his attention was attracted to something on that side, overlooked the danger for a fatal instant, no one can know. But that it was a want of due care for him to project his head at that moment is a matter upon which reasonable minds can not fail to concur without hesitation or dissent, and we think the court was justified in so pronouncing and so instructing the jury. Hoehn v. Chicago, Peoria & St. Louis Ry. Co., 152 Ill. 223. The case of Lake Shore and Michigan Southern Railway Company v. Kelsey, 76 Ill. App. 613, and 180 Ill. 530, is cited in support of appellant’s contention that the question of negligence should have been submitted to a jury. The facts, however, in that case wore entirely different. There an obstruction had been placed so near the tracks that a passenger while riding as such passenger came in contact with it. In the present, case, however, the deceased, as a passenger, was in no such danger, but only as he projected his body beyond the side of the car, which, as a passenger, he had no occasion whatever to do. We find no error in the judgment of the Circuit Court and it must be affirmed.