| Ill. App. Ct. | May 8, 1899
delivered the opinion of the court.
The appellant, March 9, 1894, became a passenger on appellee’s train at Favenswood in this county, to be carried thence to Chicago. Appellee’s terminal depot in Chicago is at Fifth avenue. Appellant testified as follows:
“ When the train drew near Clinton street I stepped to the door and stood there, on the inside of the door, until the train stopped. When the train stopped at Clinton street I then stepped out of the door onto the platform and down onto the lower steps with the intention of getting off, when I noticed a passenger train backing out on that side. I turned my head and was in the act of going back, stepping back to get off on the other side, and before I could do so —before I had a chance to step back-—a la¡rge lantern fell from above, which lantern—I believe they are commonly called ‘bull’s eye,’ a heavy lantern which is attached on the end of the rear of the car—fell down, striking me on the nose, cutting my nose open and knocking me back across the edge of the first step, bruising me in the side and injuring my nose; cutting it open.”
He further testified that the lantern was attached to the rear end and close to the side of the car. This testimony of appellant is corroborated by that of another witness. There is not a regular station at Clinton street, but the evidence is that the train stopped there." One of appellant’s witnesses testified that the incoming trains always stop at Clinton street, and that a great many people got off there. This evidence was stricken out by the court, erroneously, as we think, but as no exception was taken to the striking out of the evidence we can not consider it. The evidence tends to prove that appellant was injured. At the close of appellant’s evidence appellee’s counsel moved the court to take the case from the jury, which motion the court overruled and directed counsel to proceed with the argument, but after counsel for appellant had concluded his opening argument, and counsel for appellee had commenced his argument, the following occurred:
The court: “I think I shall have to interrupt you. Neither mechanics nor nature has reached a point at which accidents can not happen. There must be some proof tending to show why this lamp fell; there must be some proof that it was insecurely fastened. I do not think the mere falling of a lamp is proof of negligence; somebody might have bumped against it; it does not even appear that anything was broken. I think I will give an .instruction. The jury are instructed to find the defendant not guilty.”
The jury returned a verdict as directed, a motion for a new trial was made by appellant and overruled, and judgment was rendered on the verdict.
The remarks of the court will be better understood by referring to the statement in the declaration of the cause of the accident, which is as follows:
“That while plaintiff was passing through said car across the car platform onto the ground in the proper and correct manner, and before he had reached the ground, and while the plaintiff was using all due care and caution for his own safety, a large and heavy lamp known as a ‘ Bull’s Eye,’ which had been by the defendant negligently and carelessly attached to the rear end of the said train, from which this plaintiff was about to alight, fell from its fastenings because of the negligence of the defendant in carelessly and improperly attaching and maintaining said ‘bull’s eye’ on the back of the rear car, down upon the plaintiff, striking him in the face, bruising and cutting plaintiff’s face,” etc.
The court was evidently of opinion that from the falling of the lamp the jury could not legitimately infer that it was negligently and insecurely attached to the car, and that there must be some direct affirmative proof of that fact, and so appellee’s counsel contend.
Counsel for appellee argue that the meaning of the averment of the declaration quoted supra, is that there was negligence in the mere act of keeping a bull’s eye (meaning the lamp) in the place where it was. ¥e do not so understand the averment. The negligence averred is the carelessly and negligently attaching the lamp to the car. The language is that it “ fell from its fastenings, because of the negligence of the defendant in carelessly and improperly attaching and maintaining said bull’s eye,” etc. Counsel also argue on the hypothesis that the train was moving at the time of the accident. The evidence is that the train stopped at Clinton street, and appellee’s attorney stated on the trial that appellee’s trains are compelled to stop there because of the crossing of the 0., M. & St. P. tracks. On the hypothesis that the train stopped at Clinton street and, as appellee’s attorney substantially admitted, always stops there, we do not understand counsel to contend that appellant in going onto the platform, for the purpose of alighting from the train, was guilty of negligence as matter of law, and we think it clear that he was not. Penn. Co. v. McCaffrey, 173 Ill. 169" date_filed="1898-04-21" court="Ill." case_name="Pennsylvania Co. v. McCaffrey">173 Ill. 169.
But counsel contend that to warrant a recovery there must have been direct affirmative evidence that the lamp was negligently and insecurely attached to the car; that this can not be legitimately inferred from the faet that it fell. Counsel seem to admit that, under a general averment of negligence, proof that the appellant was a passenger, and was injured while in the exercise of ordinary care, would make a jprimafa&ie case of negligence on the part of appellee and shift the burden ox proof to appellee; but that specific negligence being averred, viz., the careless attachment of the lamp to the ear, direct and specific proof must be made by appellant of the specific negligence averred. The same point seems to have been made in N. C. St. R. R. Co. v. Cotton, 140 Ill. 486" date_filed="1892-01-18" court="Ill." case_name="North Chicago Street Railway Co. v. Cotton">140 Ill. 486. In that case, the court say : “ In many cases it has been held that in a suit by a passenger against a carrier for an injury, the mere proof of the accident by which the injury was occasioned is sufficient to throw the burden on the carrier to show that he exercised due care, and there seems to be a very general concurrence of authority that, when there was an absence of vis mayor, and it is shown that the injury happened from the abuse of agencies within the defendant’s power, it will be inferred from the mere fact of the injury that the defendant acted negligently.” After citing eases in support of this proposition, the court proceeds thus: “But it seems to be contended that, even admitting that a presumption of negligence arises from mere proof of the plaintiff’s injury and its cause, it does not follow that there is any presumption of the specific negligence alleged in the declaration. Even if it be admitted that the presumption is one of negligence generally, and not of any specific negligence, we think it sufficient to throw upon the defendant' the burden of rebutting the specific negligence alleged.” In the present case the lamp, or bull’s eye, was in the control and management of appellee; it was placed where it was by appellee’s servants. The uncontradieted evidence is that it fell. There is no pretense that its fall was caused by vis mayor. The proof, we think, was clearly sufficient to cast on appellee the burden of disproving negligence, and that in the absence of such proof the jury would have been justified in finding that it fell because of having been carelessly and improperly attached to the car.
In White v. B. & A. R. R. Co., 144 Mass. 404" date_filed="1887-05-07" court="Mass." case_name="White v. Boston & Albany Railroad">144 Mass. 404, the evidence was that a porcelain shade fell from the top of the car on the face of the plaintiff, a minor about four jmars of age, and injured her face. This was substantially all of the evidence. The court say :
“ The contention of the defendant is that there was not sufficient evidence of that fact; and that it did not appear that the accident was not caused by the act of a stranger, or by some external force from which the defendant was not responsible. We think that the question was for the jury, and that they were authorized to infer from the situation of the fixture, from the absence of evidence of any other cause of the accident, and the probability that there would have been such evidence had such cause existed, and from all the attending circumstances in evidence, that the accident must have been caused by the insufficiency of the fixture. It was not necessary that the evidence should show that it was impossible that there should be any other cause; it was sufficient if it satisfied the jury that there was none.”
Numerous other authorities might be cited on the doctrine of presumption from facts similar or analogous to those in the present case, but the law on the subject is familiar to practitioners, and we think further citation is unnecessary. We are of opinion that the court erred in taking the case from the jury; therefore, the judgment will be reversed and the cause remanded.