Swanson v. Chicago City Railway Co.

Me. Peesiding Justice Smith delivered the opinion of the court. Counsel for appellant have presented an elaborate argument upon the evidence in the record to show that the verdict of the jury is not justified, because there is no evidence that appellant was guilty of the negligence averred in the declaration. The first, second, fourth and fifth counts of the declaration aver knowledge, actual or implied, by appellant of appellee’s dangerous position while pushing the car near the wheel, and that with such knowledge it carelessly started the car suddenly and thereby caused appellee to be thrown against and beneath the wheel, without notifying appellee that it intended to so start the car, so that he might remove himself from his dangerous position. The gist of the sixth count is that after appellee’s leg was on the fender in front of the wheel, and with the wheel grinding against it, a loud outcry was raised by the bystanders, and that by reasonable heed and attention to what was going on about the car, appellant would have known appellee’s dangerous position, etc., and conld and would have stopped said car in a very short distance before injury to appellee, but that appellant carelessly failed to heed the cries of appellee and the bystanders and failed to learn and know that the wheel was grinding appellee’s leg, and to stop the car accordingly for a great, and unreasonable distance, etc. We have examined the evidence with great care and also the arguments and contentions of counsel on both sides. The testimony is squarely contradictory and irreconcilable upon the question of notice to the conductor of appellee’s position before the train started, and upon the question whether the train started with a jerk. The testimony is contradictory as to the notice to appellant’s trainmen that appellee was injured and in peril immediately after the train started and while it was moving, and upon the question of negligence in not stopping the train promptly upon the outcries made by appellee and the bystanders. Upon the state of the evidence in the record bearing on these questions we cannot say that the verdict of the jury is not justified by the evidence, or that there is no evidence tending to prove that appellant was guilty of the negligence alleged in the declaration or any count thereof. We think the question of appellant’s negligence as alleged in the declaration must be regarded as settled by the verdict. We do not find any substantial basis in the record for the contention that the jury were influenced by motives of prejudice or swayed by sentiments of sympathy; and that the jurors were not governed by the evidence in reaching their verdict. It is insisted on behalf of appellant that the court erred in admitting the testimony of appellee, Ruse, Wood, Delpire and others, to the effect that the conductor requested appellee and the witnesses to push the train. One ground of this contention is that this request, if made, was before the train started and several minutes, at least, before the accident. The request, therefore, was no part of the res gestae. In our opinion, under the evidence, it was so connected with the accident, both in relation to it and in proximity of time, to be properly admitted in evidence. We think it tends to illustrate and interpret the other parts of the transaction of which it was itself a part. Chicago W. D. Ry. Co. v. Becker, 128 Ill. 545. It is difficult to believe that the conductor made the request, if it was made, with any idea that the boys could move the train or that there was any reason to suppose it would do any good or serve any useful purpose, if they could move it. The invitation to push, if made at all, must have been made in jest. No claim was made in the declaration or on the trial that appellant was liable for negligence in inviting appellee to push the train. The evidence was offered in connection with other evidence for the purpose of showing actual knowledge on the part of the conductor that appellee was pushing the car and the danger he was in of being injured by starting the car without notice to him. For this purpose we think the evidence was competent. We find no reversible error in giving the eleventh and twelfth instructions requested by appellee. Star Brewing Co. v. Hauck, 222 Ill. 350; Chicago W. D. Ry. Co. v. Ryan, 131 id. 474; Pierce v. Walters, 164 id. 560. As to instruction No. 40, requested by appellant and refused by the court, we are of the opinion that the first proposition of the instruction, that appellee must prove he was not guilty of any want of ordinary care, prudence and caution, is not properly qualified to make it applicable to appellee, who was under nine years of age. The rule on this subject was properly stated in instruction No. 38, given at appellant’s request, which told the jury that appellee was only required to exercise that degree of care and caution which boys of his age, capacity, intelligence and experience may reasonably be expected to use under like circumstances. Peterson v. Chicago T. Co., 231 Ill. 324, 327. The second proposition contained in this instruction was fully covered by instructions Nos. 24 and 25, requested by appellant. The forty-first instruction (refused) on comparative negligence was argumentative. It also ignores the case made under the sixth count of the declaration, under which appellee might recover although he was guilty of negligence in getting into the position where he was injured. The refusal of the instruction was not prejudicial error. The court did not err in refusing to give the forty-second instruction, for there was no evidence that appellee had gotten upon the car to steal a ride thereon. There was no evidence on which to base the instruction. We find no material error in the record, and the judgment is affirmed. Affirmed.