Chicago City Railway Co. v. Pural

127 Ill. App. 652, 1906 Ill. App. LEXIS 439

• Court: Appellate Court of Illinois
• Decided: July 13, 1906
• Docket: Gen. No. 12,583
• Status: Published

Opinion

Mr. Justice Baker

delivered the opinion of the court.

The charge of negligence in the declaration is, that while plaintiff was a passenger upon the.Thirty-first street car “ the motormen and conductors wrongfully, negligently, knowingly, improperly and carelessly caused it to be run and moved in an eastern direction at a high rate of speed, wrongfully, carelessly and improperly caused it to g<5 and to be brought into contact with a certain other car running at a high rate of speed in and along said Wentworth avenue in a northern direction, so that the front end of said Went-worth avenue car came in contact and collided with said Thirty-first street car.” This is not alone a charge of negligence as to the speed of the car, but is also a charge that the defendant wrongfully, carelessly and improperly caused the Thirty-first street car to go and be brought in contact with the Wentworth avenue car. Chicago City R. R. Co. v. Jennings, 157 Ill. 274.

Proof that the plaintiff was a passenger in the Thirty-first street car of the defendant; that she was in her seat, and that while there she was struck by another car of the defendant and injured,.made a prima facie case of negligence of the defendant.

The contention of appellant is that the evidence shows that the collision occurred because a brake on the Thirty-first street car failed to work without any fault or negligence on the part of the defendant. There was no evidence as to what caused the brake to fail to work, if it did fail, nor that any examination was made of the brake after the collision. The motorman, who had run a motor car but two weeks and had been a student or apprentice upon a motor car two weeks before he was given a car, was the only witness who testified that the brake was out of order or failed to work. On his cross-examination he testified as follows: “I certainly do say that the brake was out of order, because it did not take hold enough. Why it did not Í could not tell you.”

Another motorman called by the defendant testified that : “When you put on the brake you can’t tell in advance whether it is going to work or not until you try it. Sometimes the brake will take, and then don’t, and it will catch again if applied the second time.” There was no sand box on the Thirty-first street car and the rail was wet.

Whether the evidence offered by the defendant was sufficient to overcome the prima facie case made for the plaintiff was, in our opinion, a question of fact for the jury upon which their verdict must be held conclusive.

There is much conflict in the evidence as to the nature and extent of plaintiff’s injuries and the consequences thereof, but we cannot say that, upon the evidence, the damages awarded her by the jury are excessive.

We find no reversible error in the rulings upon evidence.

Complaint is made of the following instruction given for the plaintiff: “The jury are instructed, as a matter of law, that it is the duty of a railroad company to use the highest degree of care and caution, consistent with the practical operation of the road, to provide for the safety and security of passengers while being transported,” because of the omission of the word “reasonably” before the word “consistent.”

A similar instruction given for the plaintiff in which the word “reasonably” was omitted was approved in West Chicago v. Kromshinsky, 185 Ill. 92. See also C. U. T. Co. v. Yarus, 221 Ill. 641.

The judgment of the Superior Court will be affirmed.

Affirmed.