96 Ill. App. 210 | Ill. App. Ct. | 1901
delivered the opinion of the court.
Christensen was bound to exercise ordinary care for his own safety, and appellant was bound to use the same degree of care not to injure him. What each was required to do m order to comply with the obligations just stated, depended upon the situation under which such exercise of care was demanded. Christensen knew that appellant was operating upon the avenue an electric road; that its cars were propelled with great speed; that its duty to the public required it to move its cars at a rapid rate and in such a manner that they should arrive at the various points upon .its line with reasonable regularity as to time. Appellant knew that Christensen and others of the public had with it equal right to the use of the street, save that as its cars moved upon a fixed track, other vehicles must reasonably give way for the movement of its carriages. Appellant ■ knew that bicycle riders, buggies and wagons were likely ■ to be moving along the street, and might desire to cross over or go upon its tracks, and that they had a right reasonably so to do. Most, if not all, these things were known to Christensen. Each upon the day in question was moving along this street, wherein they knew many others might be passing and encountered. The accident seems to have happened as the result of a sudden and unforeseen juxtaposition of affairs. It may have been immediately caused by the sudden shying of a horse drawing a buggy proceeding southward, in connection with a failure of the motorman to sound his gong for such a number of times as to attract the attention of Christensen. It may have happened as the result of Christensen’s turning to the left of the buggv, instead of passing it to the right. He may have been led so to do by the proximity of a wagon, also passing southward, both buggy and wagon, as it would seem, on the wrong side of the road, that is, passing southward on the left instead of the right side of the street. It may have been caused by the failure of appellant’s servants to stop the car so soon as they perceived, or with reasonable care might have perceived, that Christensen was in such a position of danger as required them so to do. Christensen may have made a mistake or failecl to exercise ordinary care, and such mistake or lack of care may have conduced to the injury. Appellant’s servants may have been guilty of negligence in failing to sound the gong sufficiently, or in failing to slacken the speed or stop the car when they perceived, or ought to have perceived, the peril Christensen was in. Christensen may not have been guilty of negligence, or may have been guilty of only such slight negligence as is consistent with ordinary care.
The situation out of which this lamentable occurrence grew, the duty and obligation of the respective parties, under the circumstances, should have been presented to the jury under instructions clearly and correctly defining th.e legal duties and rights of the parties under the circumstances. Where an alleged negligence consists of an omission of a duty suddenly and unexpectedly arising, it is incumbent on the plaintiff to show that the circumstances were such that the defendant or its servants had an opportunity to become conscious of the facts from which the duty arose, and a reasonable opportunity to perform such duties. In the present case the motorman was bound to notice the presence of other vehicles ahead of his car, either directly or so close to the track upon which he was running that there was danger his car would run into them. He was not bound to apprehend that a vehicle proceeding on a line parallel to the railroad track, and at a safe distance from it, would, other than at a crossing, or in the immediate proximity thereof, diverge from within its parallel course, and go upon the railroad tracks, or so near thereto, that it would be struck by the car. Nevertheless, he was bound to notice what vehicles near to the track were doing; and if he saw one going upon the track, or so near thereto as to be likely to be in great danger of being struck by his car, to not only warn the driver of such vehicle, but also, in so far as he could, prevent a collision by arresting the progress of his car. If a person is seen upon the tracks, or near thereto, and is apparently capable' of taking care of himself, while the motorman should give warning by sounding his gong, having done so, he may assume that, such person will leave the track before the car reaches him, so long as the danger of injuring him does not become imminent, and no longer; but this presumption can not be indulged in with reference to children too young to appreciate the danger, nor with regard to those who appear to be in a peril from which they are unable to extricate themselves. Booth on Street Railways, Secs. 305, 306, 307; Hestonville R. R. Co. v. Kelley, 102 Pa. St. 115, 120; Thomas v. Passenger Ry. Co., 132 Pa. St. 504, 515, 516; Citizens St. Ry. Co. v. Carey, 56 Ind. 396, 404; Button v. Hudson R. Ry. Co., 18 N. Y. 248, 255, 256, 257, 258; Bulger v. Albany Ry. Co., 42 N. Y. 459; Hearn v. St. Charles R. R. Co., 34 La. An. 160, 163.
The declaration in this case charges that defendant’s street car ran against and struck the said Paul Christensen. Appellant asked the following instruction:
“ If the jury shall find from the evidence that Christensen ran his bicycle into the side of defendant’s car, ancl thereby caused the accident, then they are instructed that under "the declaration in this case their verdict must be for the defendant.”
In view of the allegations of the declaration, this instruction, as asked, should have been given. The court gave the following instruction:.
“ If the jury shall find from the evidence that, as the defendant’s car approached Christensen, he was riding on the roadway east of the tracks, at a safe distance, and that there was sufficient space between the buggy and the track to have enabled him to pass in safety, then they are instructed that the motorman was not bound to anticipate that Christensen would, if he knew,.or hy the exercise of ordinary ca/re oiight to have known of the proximity of said car, run his bicycle so near to the car as to run into the side of it, or be struck by the side of it, and the motorman was not hound to slacken the speed of his car in passing Christensen, unless he knew, or hy the exercise of reasonable or ordinary care ought to have known, that the deceased did not know of the proximity of said car. The court further instructs you that the court has no opinion and expresses no opinion as to rohat the deceased knew, or o%tghh to home known, or what the motorman knew, or ought to have known, at or he.fore the time of the collision. You must determine this from the evidence and the evidence alone?
The italicised portions of this instruction are that which was inserted and added to an instruction asked by the defendant. As given, the instruction throws upon the motorman the burden of knowing that the driver of a vehicle, at a safe distance from the railroad track, knows, or in the exercise of ordinary care ought to know, of the proximity of the car, and unless the motorman knows this he-is bound to use his utmost efforts to slacken the speed of his car; so that if the driver of such vehicle suddenly swerves and runs his carriage down upon the track, he will not be injured. The defendant asked the court to instruct the jury as follows:
“If the jury shall find from the evidence that Christensen was not skilled in riding a bicycle, and that the accident was caused by want of skill or inability on his part to properly manage it, then they are instructed that their verdict must be for the defendant.”
There was nothing in the evidence warranting the conclusion that the injury to Christensen was wanton or willful. If, therefore, the accident was caused by want of skill or inability on his part to manage his bicycle, the plaintiff was not entitled to recover, although, other things may have conduced to the accident. The modification of the instruction by adding after the words “ manage it,” “ that alone,” should not have been made. We can not approve of some of the language used by one of the attorneys for the plaintiff in addressing the jury. The evidence did not show, as such words are ordinarily understood, that appellant had killed Christensen. So far as appears from the evidence, his death was the result of an accident, due, it is claimed, to the negligence of appellant, but, as we have-before said, the evidence did not show a wanton or willful disregard, of the rights of Christensen, nor was there anything in the conduct of counsel for defendant warranting the statement that “justice was a thing they did not understand.” Nor do we think that plaintiff’s eloquent attorney would, save in the heat and under the excitement of a trial, make such an accusation. The attorneys upon each side were zealously and honorably endeavoring to serve their respective clients; that either should regard the case dispassionately or have the same conclusion as to its merits, is not to be expected. The judgment of the Circuit Court is reversed and the cause remanded.
