Metropolitan West Side Elevated Railway Co. v. Sutherland

Mr. Justice Smith delivered the opinion of the court. The question of the liability of plaintiff in error for the injuries received by defendant in error turns upon the duty which it owed to her, and whether or not it neglected that duty. If defendant in error was a passenger on the car- of plaintiff in error, then the duty of the latter to her “involved the use of the utmost care and diligence which can be bestowed by common skill and foresight.” C., B. & Q. R. R. Co. v. Mehlsack, 131 Ill., 61. If on the other hand defendant in error was a mere stranger to plaintiff in error, the duty of plaintiff in error rested merely upon grounds of humanity and respect for the rights of others, and required it to so perform its transportation service as not wantonly or carelessly to be an aggressor towards her. C., B. & Q. R. R. Co. v. Mehlsack, supra. The evidence clearly and without controversy shows that defendant in error was not a passenger on the car of plaintiff in error. She had purchased a ticket for transportation on the south side elevated railroad train, and had no intention, desire or right to board the train of plaintiff in error, the destination of which was to a different part of the city from her home where she was intending to go. She was on the car of plaintiff in error by her own or her daughter’s mistake, and with no purpose or intention of being carried as a passenger. She was not received by plaintiff in error as a passenger, and was not under its control and entitled to its care as a passenger. C. & E. I. R. R. Co. v. Jennings, 190 Ill., 478; I. C. R. R. Co. v. O’Keefe, 168 id., 115; N. C. S. R. R. Co. v. Williams, 140 id., 275, 288. Upon the undisputed facts shown in the evidence defendant in error was a stranger to plaintiff in error and a mere licensee on its car, and its obligation, as stated above, rested “upon grounds of .general humanity and respect for the rights of others,” and required that it should not wantonly or wilfully inflict an injury upon her. North Chicago St. Ry. Co. v. Thurston, 43 Ill. App., 587, and authorities there cited. In our opinion, the evidence in this case fails to show that plaintiff in error wantonly or wilfully inflicted any injury upon defendant in error, or that it was guilty of gross negligence. It is not claimed or pretended that defendant in error was wilfully injured. Was there, then, wantonness, a reckless disregard of the rights of defendant in error, or a manifestation of indifference to her safety % We think not. She and her daughter were conversing as they stepped upon the car. They did not notice the color of the train, which was different from the color of the south side trains, until they were informed by the guard on the platform that it was a west side train, when the daughter looked up and saw for the first time, as she stood on the platform, that it was a west side train. Thereupon the daughter stepped off the car platform. In the meantime the station platform man, having observed that no passengers were getting off or on the train, gave the signal to start to the motorman of the train. As defendant in error was stepping off the car the train started forward and she was thrown upon the station platform. In these facts we find no evidence of negligence on the part of plaintiff in error or its servants. It follows that the motion of plaintiff in error to instruct the jury to find the defendant not guilty should have been sustained and the jury so instructed. As there was no failure on the part of plaintiff in error to observe its duty to defendant in error, there can be no recovery in this case, and the judgment is reversed with a finding of fact. Reversed, with finding of fact.