| Ill. App. Ct. | Jan 11, 1894
delivered the opinion oe the Court.
Two acts of negligence are charged in the declaration, viz.: that defendant’s driver failed to stop its car, as requested, at the intersection of Addison street and Evanston avenue; and that the deceased, while with due care and diligence endeavoring to alight from the car, was thrown to the ground and injured by reason of the negligence of appellant in failing to properly equip its cars with safety guards and appliances.
As to the alleged negligence in failing to stop its car when requested, the court is unitedly of the opinion no recovery can be had in this case. For whatever damage a passenger may sustain from a failure to stop a street car at a proper place when properly requested, such failure being the proximate cause of the injury, a recovery might be had. In the present case between the negligence of the driver and the injury to plaintiff’s intestate there intervened another cause, without which the accident would not have happened; that intervening cause was the act of the deceased in jumping from the car while it was in motion.
The train of events, from the failure to stop the car to the accident, was not a natural or necessary sequence from the act of the driver in not stopping his car.
Nor was the jumping from the car, so far as is shown by the evidence, a thing which the defendant can be presumed to have known would follow the failure to stop.
The breach of duty upon which an action for injury can be maintained must be the proximate cause of the damage to the plaintiff. I. B. & W. Ry. Co. v. Birney, 71 Ill. 392; Shearman & Redfield on Negligence, Secs. 8, 25 and 26; Schefer v. Ry. Co., 105 U.S. 249" date_filed="1882-04-10" court="SCOTUS" case_name="Scheffer v. Railroad Co.">105 U. S. 249; Kirtner v. Indianapolis, 100 Ind. 210" date_filed="1885-02-13" court="Ind." case_name="Kistner v. City of Indianapolis">100 Ind. 210; Philadelphia R. Co. v. Boyer, 97 Penn. St. 91.
The maxim applicable in such cases is íí In jure non remota causa sed próxima spectat urP In law the immediate, not the remote, cause of any event is regarded. As to the alleged negligence in not having upon the car proper guards, the defendant, being a common carrier, is bound to exercise the highest diligence for the safety of its passengers, while riding, getting on and getting off its cars. In the providing of appliances for the safety of passengers, it is bound to make use of such well known and approved means as are' reasonably consistent with its condition, the business it is doing, and its duty to the public. Smith v. New York & Harlem Ry. Co., 19 N.Y. 127" date_filed="1859-03-05" court="NY" case_name="Smith v. . New York and Harlem Railroad Company">19 N. Y. 127; Hegeman v. Western Ry. Corporation, 3 Ker. 9; Hutchinson on Carriers, Sec. 529; Toledo, etc., R. R. Co. v. Conroy, 68 Ill. 560" date_filed="1873-09-15" court="Ill." case_name="Toledo, Peoria & Warsaw Railway Co. v. Conroy">68 Ill. 560.
The Supreme Court of this State, in North Chicago St. Ry. Co. v. Williams, 29 N. E. 672, held that whether a plaintiff, in getting upon a horse car while it is in motion, is or is not in the exercise of due care, is a matter for the determination of the jury under all the circumstances of the case. Such being the rule—whether the deceased was in the exercise of ordinary care in getting off the car while it was in motion, and whether there were well known and approved appliances (guards) which, if in use, would have prevented the injury to the plaintiff, and whether the use of such guards was reasonably consistent with the condition of appellant, the business it was doing and its duty to the public, were all questions to be submitted under proper pleadings and instructions to the jury.
It is the duty of a common carrier to be diligent in providing for the safety of its passengers, and it is prima facie liable for injuries happening to them on account of any negligence by it; they being at the time of such injury in the exercise of ordinary care and in observance of its rules. If, then, it be not negligence for a passenger to get off a moving street car, and not a violation of its rules, it is the duty of the carrier to be diligent in so equipping its cars that he may not be injured in so alighting. The amount of the verdict and judgment in this case can not be justified. The defendant is liable only for the pecuniary loss sustained by the next of kin. Neither five nor fifty thousand dollars would be an adequate compensation for the pain and anguish of the parents of this boy; with this we have nothing todo. While it is the rule in this State that in this class of cases the jury may give damages without evidence as to the pecuniary loss sustained, yet it is not the case that the conclusion of the jury in this regard is beyond review. We can not say, and we do not think, that the jury thought that the pecuniary loss alone to the next of kin of deceased was five thousand dollars. It is doubtful if, in one case in a thousand, the bare pecuniary loss suffered by the next of kin from the death of a boy of ten years, is five thousand dollars; in very many instances like this, while there is the keenest anguish, there is no pecuniary loss whatever. In mo such case as this has a judgment of this magnitude been sustained by the Supreme Court. The judgment of the Circuit Court is reversed and the cause remanded.
I agree to the reversal of the judgment, but not for the reason assigned in the foregoing opinion. Notwithstanding the decision of this court in Adamick v. Chicago E. & L. S. Ry., 33 Ill. App. 412" date_filed="1889-07-02" court="Ill. App. Ct." case_name="Chicago v. Adamick">33 Ill. App. 412, and the authorities there cited, and my own apparent assent thereto in Chicago M. & St. P. Ry. v. Wilson, 35 Ill. App. 346" date_filed="1890-02-12" court="Ill. App. Ct." case_name="Chicago, Milwaukee & St Paul Railway Co. v. Wilson">35 Ill. App. 346, I yet believe that the legislation of this State commits to the uncontrollable caprice of the jury the amount of damages, not exceeding $5,000. It is all guess work; Railroad Co. v. Barron, 5 Wallace (S. C.) 90; and what is there said about “good sense and sound judgment,” only gives a respectful name to the disposition of juries to make railroads smart.
Negligence is the omission to discharge some duty, whenever the negligence consists in omission. No duty, no negligence.
Duty is an inference of law. I undertake to say that no declaration can be drawn, which will show a duty of a street railway company to adopt precautions for the safety of passengers who jump, with or without notice, from a car, without any express or implied assent of the railway company while the car is moving in the ordinary course of its journey. Probably the next case where such a passenger has been bruised by the guard that a railway 'may have adopted, will be put upon the claim that he was outside the rail so that a wheel would not have touched him, but the projecting and improper guard was the cause of his hurts.
I think the cause should be remanded accompanied by an opinion that will prevent any holding on another trial, that it was the duty of the appellant to take care of the deceased when he jumped off.
Hr. Presiding Justice Shepard.
I think the judgment ought to be affirmed.