117 Ill. App. 538 | Ill. App. Ct. | 1905
delivered the opinion of the court.
We attach no importance to the testimony that the train was running at an unusual or improper rate of speed.
The jury was warranted in finding from the evidence that with a train passing over the curve in question at the usual and not an improper rate of speed a car was liable to lurch and sway in such manner and to such an extent as to endanger the safety of a person who at the time of such lurching was stepping from one car to another; that this was known both to appellee and to the conductor; that when the train was near to 22nd street and about to turn upon the curve the conductor invited appellee to go from the closed car to the grip-car; that the chains which when in place barred such passage were then down and that the conductor told appellee that the chains were down; that when appellee by invitation of the conductor started to go from the car on which she was to the grip-car she did not know that the train was near 22nd street but the conductor did know that it was near that street and was about to go upon the curve that led into that street and yet did not warn appellee of her danger in going from one car to another or make any effort to prevent her from so doing. We cannot say that from such facts the jury'could not properly find that appellant, a carrier of passengers for hire, did not exercise towards appellee, a passenger, that high degree-of care for her safety which the law required it to exercise and a failure to exercise Avhich is negligence, nor can we say that the jury from the evidence might not properly find that appellee was not guilty of contributory negligence. N. C. St. R. R. Co. v. Baur, 179 Ill. 126; C. & A. R. R. Co. v. Winters, 175 Ill. 293; L. S. & M. S. R. R. Co. v. Brown, 123 Ill. 162.
In the case last cited the deceased by direction of the engineer of a switch engine stood upon the foot-board of the engine. -The speed of the engine was checked so that the coupling pin Avhich held a car to the engine might be pulled. The pin was pulled and the engine Avas started suddenly forAArard in order to make a running switch. By the sudden and violent motion of the engine Avhen it was so started forward the deceased was thrown from the foot-board upon the track, and the car ran over him and killed him. In that case it was said: “ There may be fault on 'the part of the carrier in putting the passenger in a place of unnecessary hazard, or in giving him assurance of safety or the like which might render the apparent want of care of passenger the negligence of the carrier;” and later in the opinion it was said: “ Nor is it shown that the deceased knew or was told that a running switch was to be made. It became the duty of the servants of appellant to advise deceased of the facts before attempting the running switch so that he might have taken extra precaution or have gotten off the engine before the switch was attempted.”
In this case appellee knew that a turn would be made when the train reached 22nd street. She did not know when she started to step from one car to the other that the train had reached that street. The conductor saw her go forward towards the grip-car and knew that the train was near 22nd street and was about to turn upon the curve into that street and we think it was his duty to tell appellee that the train was about to turn into 22nd street so that she might have remained on the closed car until after the turn was made or taken extra precaution to avoid being thrown from the train.
We find no reversible error in the rulings of the trial court as to the admission or exclusion of evidence.
The injuries appellee sustained, so far as the same could be ascertained from examination, consisted of a cut in one eyelid and bruises on different parts of her person. She testified that since her injury she had suffered from insomnia, headache and nervousness. It does not appear that her condition is permanent and her attending physician testified in her behalf, that she could not tell whether her condition would be permanent; that it might last some years or she might recover sooner.
Upon a careful review of all the evidence we are led to the conclusion that the damages awarded are excessive to the amount of at least one thousand dollars. If appellee shall "within ten days remit from the judgment one thousand dollars the judgment of the Superior Court will be affirmed, otherwise it will be reversed and the cause remanded. '
Affirmed on a remittitur, otherwise reversed cmd remanded.
Remittitur filed and judgment affirmed January 9, 1905.
