111 Ill. App. 452 | Ill. App. Ct. | 1903
delivered the opinion of the court.
Plaintiff discontinued as to the first count of his declaration, and the court accordingly instructed the jury that the plaintiff had “dismissed his case as to the first count of his declaration, and you should disregard that count altogether.” The negligence charged is therefore that appellant negligently and wrongfully ran and managed the motor car so that it ran into appellee’s wagon from behind, throwing him to the ground and inflicting the injuries for vvhich recovery is sought.
It is insisted that the conditions under which appellee was injured bring the case within the rule, res ipsa loquitur. The meaning of this maxim is stated in Hart v. Washington Park Club, 157 Ill. 9-14, where will be found a citation of authorities. When an unusual and unexpected accident happens, caused by a machine in the exclusive management, possession or control of the defendant, the accident speaks for itself, and its mere occurrence is prima facie proof of negligence, sufficient to impose upon the defendant the duty of showing that it was not caused by negligence on his part. The circumstances of the case before us, bring it within the rule.- The car was in charge of one of appellant’s servants, and the fact that when the accident occurred it was running along one of appellant’s tracks upon a public street on which persons and vehicles were passing, with its motive power turned on and no one in control of or on board the car, creates a presumption of negligence which appellant was called upon to rebut.
The explanation given by the motorman of the way in which he lost control of and fell from the car is, that with one hand on the brake handle he had turned to look back, he thinks to see if there was any water going out of the tank, and as he did so he placed his other hand on the tank, ‘‘ and at that instant when I put back my hand I got a shock and fell off involuntarily.” The only evidence relating to what could have caused such a shock as the motorman says he received, is from appellant’s witnesses, and these, including expert electricians, swear that they have never known or heard of a case of the kind before, and don’t know of any way in which the electric apparatus could cause it. There is evidence tending to show that appellant had these cars regularly inspected, and exercised care and prudence in keeping them in proper order; that there were no electric wires on the top of the tank where the motorman placed his hand, and that the tank being of wood, was a non-conductor. It is urged that under this evidence the absence of the'motorman from the car cannot be ascribed to negligence in running or managing the car, and that if the accident was caused by such absence leaving the car uncontrolled, the cause was beyond appellant’s power to foresee or control.
It was for the jury to determine whether the explanation rebuts the prima faoie presumption of negligence raised by the occurrence of the accident in the manner stated. In O’Flaherty v. Nassau Electric R. Co., 54 N. Y. Supplement, 96, the plaintiff was injured by a broken trolley wire. There the defendant company claimed it had successfully met the presumption and established by conclusive evidence that it was without fault, having used the best material and method of construction and had the wire regularly inspected. The credibility of this evidence was, it is there said, to be determined by the jury. See also Uggula v. W. E. St. Ry., 160 Mass. 351-353. In the case at bar it was for the jury to consider whether the explanation offered by appellant relieved it from the presumption of negligence raised by the undisputed facts. If appellant ran its car in an unsafe condition, evidence tending to show such condition was admissible under the second count.
It is insisted that appellee was guilty of contributory negligence in driving on the track. Assuming that he should have looked and might have seen or did see a car, 150 yards away, approaching at an ordinary rate of speed on the track upon which he was driving, his alleged negligence, if any there was in that respect, was not a direct or proximate cause of his injury. Had appellant’s motorman been in charge of bis car, it could and doubtless would have been checked without striking the wagon, which was so far ahead that the motorman had ample space and time to control the car and avoid the accident.
It is urged the verdict and judgment are excessive. The original injuries consisted, it is claimed, of a dislocation of the shoulder and the fracture of three ribs. There is conflict of opinion among the doctors as to whether the ribs were fractured or not, and as to the extent and duration of the alleged physical incapacity said to have resulted from the injury. We have carefully considered the evidence, and are compelled to the conclusion that, taking all the circumstances into consideration, the verdict is larger than appellee is entitled to recover as compensation. If, therefore, within ten days appellee shall remit the sum of $1,500 from the amount of the judgment, it will be affirmed as to the remainder; otherwise not.
Affirmed on remittitur.
having presided at the hearing of this cause in the trial court, did not participate in the foregoing decision.
Remittitur filed and cause affirmed December 19, 1903.
