Gen. No. 13,598 | Ill. App. Ct. | Jan 27, 1908
delivered the opinion of the court.
All human tribunals are fallible, and it may be that the jury in this case came to a wrong conclusion from the evidence heard by them. But we know of no reason why greater certainty would inhere in a different decision by us if we should make it.
Despite the argument of the appellant to the contrary, it seems as clear to us as it did to the jury, that the evidence shows the death of the five year old boy— who was plaintiff’s son—to have been the result of his being run down, knocked over and injured by the horses and wagon of the defendant, driven by his employe and agent, while he, the boy, with a companion nine and a half years old, was with the permission and indeed by the direction of his father crossing Canal street at its intersection with Twenty-fifth place, shortly after dark on a winter evening.
It is equally clear to us, and doubtless was to the jury, that the conduct of defendant’s servant if negligent or careless, was not wilfully or wantonly so, and that the accident was and is a cause of regret and grief on his part.
What is not clear from the evidence are the questions which, as best they might, under proper instructions from the court, the jury were left to solve.
First. Was there negligence on the part of the driver in managing his horses and heavy wagon?
Second. Was the act of the boy’s parents, or either of them, in allowing or sending him across a city street after dark, contributory negligence? It is practically conceded that the child himself was too young to be guilty of such negligence in his own person.
These questions were submitted to the jury under instructions which fairly stated the law on the defendant’s theory of the facts, and by their verdict they showed that they answered the first question in the affirmative and the second in the negative.
As to the first, there was evidence tending to prove that the wagon was driven at a trot and did not slacken its speed at this intersection until the boy was struck, that the driver did not call out until after that occurrence, and, more important perhaps than anything else, that the driver was looking backward and not forward just before and at the time of the accident. His attention, it is said, was given to boys on the back of the wagon, apparently stealing a ride,” whom he was ordering away. Between this testimony and that which contradicted it, the jury made a choice and have found the driver guilty of negligence. We do not feel justified in saying their finding was clearly and manifestly against the evidence.
As to the contributory negligence of the parents, that also was a question for the jury, unless we can, as we are called on by defendant’s counsel to do, assert that as a matter of law, permitting this very young child to go across a city street after dark, accompanied only by a companion between nine and ten years old, was negligence materially contributing to the injury. We might have more doubt about this were it a question of first impression with us. But apart from the general proposition that has been decided by the Supreme Court, that the question of contributory negligence of the parents of infants who are injured is for the jury (Chicago & Alton R. R. Co. v. Logue, 158 Ill. 621" date_filed="1895-11-04" court="Ill." case_name="Chicago & Alton Railroad Co. v. Logue">158 Ill. 621; True v. Woda, 201 Ill. 315" date_filed="1903-02-18" court="Ill." case_name="True & True Co. v. Woda">201 Ill. 315), the Supreme Court has said that the fact that a child of very tender years had with him one not much older than the deceased’s companion in this case, relieves the parents from the imputation of negligence contributing to his being run down and killed on a railroad crossing. Chicago & Alton R. R. Co. v. Becker, 84 Ill. 483" date_filed="1877-01-15" court="Ill." case_name="Chicago & Alton Railroad v. Becker">84 Ill. 483. We therefore must decline to interfere with the finding of the jury on this question also.
Complaint is made that evidence was improperly admitted that the wagon had no lights on it. This was not error. The pleadings did not allege that there were no lights on the wagon, it is true, hut, on the other hand, the absence of lights was not relied on as entitling the plaintiff to recover. The instructions were such as plainly to preclude the idea that the jury could find for the plaintiff on that ground. No ordinance requiring lights was offered or alluded to. The presence or absence of lights on the wagon was one of the surrounding circumstances and conditions which could not he more properly kept from the jury than could the size and shape of the wagon or the nature of the locality.
The judgment of the Superior Court is affirmed.
Affirmed.