152 Ill. 9 | Ill. | 1894
delivered the opinion of the court:
Questions of fact arising on this record are determined by the adjudication of the Appellate Court, consonant with the finding of the trial court. We find no error in the admission or exclusion of evidence.
The question arising on the refusal of instructions asked by appellant depends upon and must be determined as to whether there is evidence tending to show appellant’s servant guilty of negligence. The evidence shows that for about eighteen months preceding the injury to appellee this barber’s sign had stood as it was immediately preceding the time it was knocked over and injured appellee. During all that time it was not a cause of injury to anyone. Its weight and the manner in which it stood on the sidewalk were such that it was not dangerous, of itself, as it thus stood. But for the intervention of a new force sufficient to cause the misfortune, it is plain that no injury would have resulted. The natural and probable result of placing a sign of that character in such a position and place was that it would probably remain in that position, though not well secured. Where such is the probable result of so placing it, and by reason of some wrongful or negligent act, as, a new cause, injury results, even though not safely fastened, that new act may be regarded as the proximate cause. The rule may be stated, that if, subsequently to the original wrongful or negligent act, a new cause intervened of itself sufficient to stand as the cause of the injury, the former must be considered too remote, unless the original wrongful act was, in and of itself, a violation of some law or ordinance. Seale v. Gulf, Colorado and Santa Fe Railway Co. 65 Tex. 274; Cuff, Admx. v. Newark and New York Railroad, Co. 35 N. J. 17; Insurance Co. v. Tweed, 7 Wall. 44.
The evidence shows the position of this pole which caused the injury. The act of the driver of the team attached to this wagon which was backed up at that point and struck and knocked over the pole, was a fact to be considered by the jury in determining as to whether the defendant was guilty of negligence. The fact that the platform of the wagon, when backed against the curb, would project over the sidewalk, ought to have been known by the servant of appellant in charge of the wagon, and appellant must be held to have known it. The position of this barber’s pole on the sidewalk, and its proximity to the curb, were facts that it was the duty of appellant’s servant to observe. That the wagon, when backed up at that place so that the wheels would rest against the curb, would cause the platform to project so as to strike against the pole, would necessarily follow as a fact known to appellant’s servant. Such being the case, the duty rested on the servant to examine to see if, by thus backing up so as to strike the pole, it was so fastened that it would not be knocked down by the projecting platform. It is not claimed that any care was taken by appellant’s servant in that behalf. Whether the backing of the wagon, with the platform projecting •over the sidewalk so as to strike and knock over the pole, was the proximate cause of the injury, and whether the servant had knowledge that such result would follow "unless the post was securely and safely fastened, (and required an examination to determine that fact,) were questions for the jury to determine.
Whether there was negligence on the part of the servant of the appellant being a' question for the jury, and the facts proven being such as tended to show negligence, there was no error in refusing the first and second instructions asked by the defendant, which were to the effect that the facts were such that the plaintiff could not recover. The fact that the barber’s pole was placed on the sidewalk and not securely fastened may have been a wrongful, negligent act on the part of the owner of the pole. That it was permitted to remain on the walk in that condition may have been a wrongful, negligent act •on the part of the city. Whether the manner in which it was knocked over was a wrongful, negligent act on the part of the servant of appellant that was the proximate cause of the injury, was the primary question that was the subject of inquiry before the jury. Negligence is the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a prudent and reasonable man would not do. Chicago, Burlington and Quincy Railroad Co. v. Johnson, 108 Ill. 512.
The primary question for the jury to determine being whether the defendant’s servant was guilty of negligence whicli was the proximate cause of the injury, and their province being" to further determine whether, by commission in doing some act which ought not to have been done, or by omission to do some act which ought to have been done, the injury resulted, in either event the inquiry before them was with reference to the acts of the defendant’s servant, alone. It was not their province to compare and determine as to the negligence of others not parties to the action; and as we have stated the rule herein to be, that if, subsequently to the original wrongful or negligent act, a new cause intervened of itself sufficient to stand as the cause of the injury, the former must be considered too remote, no inquiry as to the former wrongful or negligent act upon the part of the owner of the pole, or of the city, could properly be submitted to the jury, and the refused instructions which sought to state, as a proposition of law, that the negligence of the owner of the pole in placing it on the sidewalk relieved the defendant from liability, did not state a correct proposition of law. The first, second, third, fourth and eighth instructions were properly refused.
The fifth and seventh instructions were properly refused, as they sought to state, as a matter of law, that the driver had a right to assume the post was securely fastened, and sought to make the negligence of the driver turn on the question of the manner of managing his team, without reference to any care in determining the effect of a heavy wagon with great force striking such an object.
The sixth instruction sought to state, as a matter of law, that the plaintiff failed to exercise ordinary care, without leaving it to the jury to determine whether, under all the circumstances, the plaintiff exercised the care of an ordinarily prudent person. There was no error in the refusal of instructions.
The defendant asked the court to submit to the jury certain special findings, the first and third of which were refused. Those refused were as follows:
“ First—Do you find, from the evidence, that the pole was not properly and securely fastened to the walk, and that the accident was the natural and probable consequence of the negligence of the owner of the pole, and not the result of any negligence on the part of the driver?”
“ Third—Do you find, from the evidence, that the plaintiff, when the pole was falling, and before it reached him, held up his hands, either to catch it or for any other purpose, and that by the exercise of ordinary care he could have stepped to one side, or remained at one side, and so avoided being injured? ”
The first proposition asked the jury to find, first, was the pole properly secured; second, was the accident the natural and probable result of the negligence of the owner of the pole; and third, that the injury was not the result of the negligence of the driver. Special findings submitted to be found by a jury should be such as submit to them single, direct and plain questions, to be answered by a direct answer. The question as to whether the pole was properly secured was not a material question. The only material fact to be found, submitted in that proposition, was as to whether the injury was the result of negligence on the part of the driver.
The third proposition ignores a material fact appearing in the evidence. It is shown that when the driver saw the pole was about to fall, he called to those near to catch the pole; and as the third proposition sought to have a special finding as to whether the plaintiff used due care and caution, it is not to be determined by submitting as a special finding certain but not all the facts, and ask a conclusion from that. It was not error to refuse to submit those propositions.
The question presented on this record as to what was the answer of the juror Ohman on his voir dire, was a controverted one, and we are not disposed to disturb the action of the trial and Appellate Courts thereon.
We find no error in the record, and the judgment of the Appellate Court is affirmed.
Judgment affirmed.
