Richard Guthmann Transfer Co. v. McGuire

Mr. Justice Adams delivered the opinion of the court. Appellant’s counsel contends that the verdict is contrary to the weight of the evidence. Section 1259 of an ordinance of the city of Chicago, put in evidence by appellee, is as follows: “No person shall ride or drive any horse or horses, or other animals, in the city of Chicago, with greater speed than at the rate of six miles an hour, under a penalty of not more than ten dollars for each offense.” Five witnesses called by appellee testified variously as to the speed of the wagon per hour; one six to eight miles, three eight or nine miles, and one nine or ten miles; and one witness, not testifying as to the rate of speed per hour, said the horses were on a fast trot, and so continued till they crossed Chicago avenue. Some of these witnesses were on the northeast corner of the intersection, and some of them on the northwest corner, and two of them were in Chicago avenue east of the street car track, waiting to take the north-hound street car at Chicago avenue, so that they all had a good opportunity to observe the motion of the wagon and horses. Only one witness, the driver of the team, testified as to the rate of speed on behalf of appellant, and he testified that the horses were walking at the time of the accident. He also testified that the boy ran from the east side of the street and fell under the pole of the wagon—thus contradicting all of appellee’s witnesses who saw the accident. The driver saw the boy fall, yet the evidence for appellee tends to prove that the team went fifty feet or more before it stopped. We think the clear preponderance of the evidence is with appellee as to the speed of the team. The violation of the ordinance in driving the team at a prohibited rate of speed is prima facie proof of negligence on the part of the driver. Commonwealth Elec. Co. v. Rose, 214 Ill. 545, 560; Ward v. Meredith, 122 Ill. App. 159, 161. Appellant’s counsel further contends that appellee did not exercise ordinary care, but was guilty of negligence which contributed to the accident. The evidence is that it was dark at the time of the accident, and the wagon being at the side of the car when the boy started across the street from its west side, he was not in a position to observe the wagon; besides, under the circumstances, his attention would naturally have been directed to the car in front of which he was attempting to cross the street. In view of these circumstances and his tender age, not quite seven years and four months, we think it was a question for the jury whether he exercised ordinary care, and also whether the rate of speed at which the team was being driven was the proximate cause of the accident. We think it apparent from the evidence that had the team not been driven at the rate of speed testified to by appellee’s witnesses, the accident would not have occurred. The court, at appellant’s request, properly submitted to the jury, by instructions, the question whether appellee was guilty of contributory negligence which caused the accident. Independently of the ordinance, it was the driver’s duty to exercise a greater degree of care at street intersections than at other places on his route. Chicago C’y R’y Co. v. Tuohy, 196 Ill. 410, 413, and cases cited. Appellee’s second instruction is objected to by appellant’s counsel. It is as follows: “The jury are instructed that the rule as to contributory negligence of a child is that a child is required to exercise only that degree of care which a child of his age, intelligence, capacity, discretion and experience would naturally and ordinarily use in the same situation and under the same circumstances. ’ ’ The objection is that there is no evidence of the intelligence, capacity, discretion or experience of appellee. At appellant’s request the court gave an instruction containing this language: “Although you may believe from the evidence that the plaintiff in this case was a child, still, if you believe from the evidence that he was of sufficient age to understand and appreciate danger, and that with such understanding and appreciation of the situation he ran from any direction toward or against the horses or wagon of the defendant, and that the defendant’s driver, at the time, was exercising ordinary and reasonable care in the management of said team and wagon, and that the injury to the plaintiff was occasioned solely by his own act, and not through the negligence of the defendant’s driver, then the jury will find the defendant not guilty. ’ ’ By this instruction the jury were informed that they might infer appellee’s capacity to understand and appreciate danger from his agé, and, aside from proof of his age, there is no evidence of his capacity. We think that appellant, by asking this instruction, is estopped from objecting to appellee’s second instruction. But, if we are wrong in this, we hold that the giving of said second'instruction was not reversible error. We find no error in any other of the instructions objected to by appellant’s counsel. In the empaneling of the jury, counsel for appellant asked eight of the jurors this question: “I will ask you if, after hearing the evidence in this case and the instructions of the court, and you should have retired to your jury room, and you should find there that-some of the jurors did not agree with you, would that fact, of itself, influence you in changing your opinion 1 ’ ’ The question put to the different jurors varied slightly in phraseology, but was in substance as stated. The court ruled against the question. The question, notwithstanding the use of the words “of itself,” is inherently vicious. The only possible object of the question was, as we think, to produce a disagreement of the jury, in the event that they should not agree to a verdict for the defendant, by causing each juror to pledge himself on oath to abide by his opinion, however hastily or erroneously formed, and to disregard the opinions of his fellow-jurors. The tendency of the question, if answered affirmatively, was to encourage a disagreement of the jury, and the court properly excluded it. City of Evanston v. Richards, 224 Ill. 444, 448. An instruction to the jury-that no one of them should be influenced to change his opinion merely because others of the jurydiffered with him, would be erroneous, and if so, the question put to the jurors by appellant’s counsel, which evidently sought an affirmative answer, was improper. The testimony of Doctor Lambden, who examined appellee, is that he was seriously and permanently injured, and appellant introduced no evidence to the contrary. We do not think the damages excessive. We find no. substantial error in the record, and the judgment will be affirmed. Affirmed.