242 Ill. 388 | Ill. | 1909
delivered the opinion of the court:
The first and principal contention of appellant is, that the trial court committed reversible error in giving appellee’s twelfth instruction. Appellee contends that the rule of law announced in this instruction is that laid down by Shearman. & Redfield on the Law of Negligence, (vol. I, sec. 99, 4th ed.) that a plaintiff could recover, “notwithstanding his own negligence exposed him to the risk of injury, if such injury was proximately caused by the omission of the defendant after having such notice of the plaintiff’s danger as would put a prudent man upon his guard to use ordinary care for the purpose of avoiding such injury.” This rule was quoted with approval in Chicago West Division Railway Co. v. Ryan, 131 Ill. 474, and is understood now to be the settled law in this State.
Counsel for appellant find no fault with this rule as thus laid down, but insist that this instruction is wrong because, in effect, it “authorizes a recovery for mere negligence and inattention in failing to hear” the alleged warning or outcry given by the bystanders; that, in other words, by this instruction it is sought to hold the defendant liable for its negligence in failing to exercise ordinary care in discovering facts which, if discovered, were of a character to put a reasonably prudent person on the alert with reference to the boy’s position of danger. It is argued that mere inattention to duty in such a case as this would not be a failure to exercise ordinary care in respect to a person not a passenger. Much of the argument of counsel seems to be based upon the mistaken assumption that the defendant, in operating a street car in public streets, is charged with no higher degree of responsibility and owes no greater duty to the public than does a steam railroad company on its private right of way to a -person who is a mere trespasser thereon. (Wabash Railroad Co. v. Jones, 163 Ill. 167; Martin v. Chicago and Northwestern Railway Co. 194 id. 138.) A street railway in the city, or a steam railroad in a public highway or at a street crossing in the city, is charged with a responsibility entirely different from that of a steam railroad on its private right of way. In North Chicago Street Railroad Co. v. Smadraff, 189 Ill. 155, in discussing this question, we held that although street cars have a superior right of way to general travel on the streets, at places other than crossings, to the extent that those traveling by other means must get off the tracks and give the right of way to the moving cars, for the reason that the latter cannot leave the tracks, “still, the general public have the right to use and travel upon the entire street, including that portion of it on which the car tracks are laid, and are in no sense to be treated as trespassers for so doing.” To the same effect are North Chicago Electric Railway Co. v. Peuser, 190 Ill. 67, and Eckels v. Muttschall, 230 id. 462. A street railway, electric road or steam railroad, in the running of its trains, is required to exercise ordinary care and prudence to avoid injuring a person rightfully using the public streets and highways, regardless of statutory regulation on the subject. (Chicago City Railway Co. v. Fennimore, 199 Ill. 9; Chicago and Joliet Electric Raihvay Co. v. Wanic, 230 id. 530.) Should the appellant be held for the negligence of its employees in failing to obtain, at the time of this accident, a knowledge of the facts which would have caused a prudent person to be on the alert ? In Harlan v. St. Louis, Kansas City and Northern Railway Co. 65 Mo. 22, it was held that if the company “failed to discover the danger through the recklessness or carelessness of its employees when the exercise of ordinary care would have discovered the danger and averted the calamity,” it would be liable. That case was quoted with approval by this court in Lake Shore and Michigan Southern Railway Co. v. Bodemer, 139 Ill. 596. What distinction is there, in negligence, in failing to acquire knowledge, and “carelessness,” as the latter word is used in the authorities just cited? In Star Brewing Co. v. Hauck, 222 Ill. 348, the evidence tended to show that a boy had been standing on the sidewalk with his face turned away from an approaching brewery wagon, but he was in plain view of the driver for a distance of eighty-five feet if the latter had been observing where he was driving; that the boy suddenly and unexpectedly ran in front of the horses and was knocked down, run over and killed. The brewery company was held liable for the boy’s death. If we understand the argument of appellant on this question, it would logically result in the driver of the brewery wagon not being held liable for this failure to observe where he was driving. The notice necessary to put a prudent man on the alert certainly does not mean notice necessary to put a blind or deaf man on the alert. If the rule contended for by counsel be correct, then the street car corporations would not be held liable for accidents even if their conductors and motormen were to close their ears and shut their eyes and run their cars through the streets heedless of consequences. Conceding that the testimony for appellant as to what occurred in and about the cars before- and at the time of the accident is correct, the conductor and motorman knew that the boys were on the street and about the cars. In discussing a somewhat similar state of facts as to children being on the street, in Hackett v. Chicago City Railway Co. 235 Ill. 116, this court said (p. 130) : “Any man of ordinary intelligence knows that children are then more apt” (being just free from the school room) “to run and play in heedless glee than under ordinary circumstances, and that while so doing they will pay less attention to their immediate surroundings and exercise less discretion than they commonly do. Appellant was chargeable with this knowledge, and that being true, it was for the jury to say whether it was guilty of negligence in propelling the car at the rate of speed at which it traveled, and in failing, by its motorman, to have the brake-chain so wound up as that the brake could be instantly applied if necessity for stopping the car or lessening its speed arose.” That same reasoning applies with great force to the facts in this case. It was the duty of the conductor and motorman to be on the alert to see that these children were not injured. If by the exercise of ordinary care and prudence in the discharge of their duties, under the' facts shown in this case, they could have seen the boy in his dangerous position or heard the cries of the bystanders, then the company should be charged with their negligence in failing to see or hear.
The further contention is made that the testimony of appellee and the other boys that the conductor asked them to “come on and help push the car” was improperly admitted in evidence. At the time this evidence was admitted counsel for appellee stated that he did not claim it should be admitted for the purpose of showing negligence on the part of the conductor, but for the purpose of showing that he had notice or knowledge that the boys were about the cars. Counsel for the appellant at that time stated that it ought to be stricken out because it did not show negligence. We are disposed to hold that this request to help push was a part of the res gestes and admissible on that ground. It is contended by the appellant that the conductor asked the boys to help some fifteen or twenty minutes before the accident occurred, and therefore this was not a part of the res gestes. We think the weight of the evidence tends to show that the request was made only four or five minutes before the boy was injured, and that it was a verbal act explaining, illustrating or interpreting other parts of the transaction of which it was itself a part, and hence was a part of the res gestes and admissible. (Chicago West Division Railway Co. v. Becker, 128 Ill. 545; Pennsylvania Co. v. McCaffrey, 173 id. 169.) A narrative of past events cannot be introduced as a part of the res gestes. Continuousness, however, is not always to be measured by time. A transaction in which parties are absorbed may last for weeks, so as to make what is said and done in connection with it a part of the res gestee. (1 Wharton on Evidence, sec. 261; McMahon v. Chicago City Railway Co. 239 Ill. 334, and cases there cited.) This alleged invitation of the conductor was contemporaneous with the main fact,—the injury,—and therefore was properly admitted, not to show negligence on the part of appellant, but for the purpose of showing, in connection with the other evidence, actual knowledge on the part of the conductor that appellee was pushing and was in danger of injury by the sudden jerking of the car.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.