West Chicago Street R. R. v. Stoltenberg

62 Ill. App. 420, 1895 Ill. App. LEXIS 452

• Court: Appellate Court of Illinois
• Decided: February 11, 1896
• Status: Published

Opinion

Mr. Justice Waterman

deliveeed the opinion of this Court.

Under the circumstances of the accident, the gripman being unable to tell that no one was waiting to come immediately from behind the wagon upon the crossing, it was a question for the jury Avhether appellant was not negligent in permitting its car to move toivard the cross-walk at a rate of speed that prevented its being stopped ere it ran upon the deceased.

The right of the deceased to pass over the crossing was equal to that of appellant. Appellant might have so controlled the movement of its car that it Avould not run overa person Avho might step from behind the Avagon upon the crossing. Because of the wagon the gripman could not see the boy, and for the same reason the boy could not see the car; each should have been watching for the coming of that whose presence the wagon hid.

Was the boy in the exercise of ordinary care ? This question must be answered, not from the standpoint of the care to be expected from an adult, but by that which is to be looked for in boys of the age and experience of the deceased, who was nine years of age. We see no sufficient reason for reversing the verdict of the jury in this regard.

The writer of this opinion is inclined to think that the damages, being only for the pecuniary loss sustained, are excessive.

A majority of the court being unwilling to disturb the judgment on account of the amount of damages awarded, the judgment of the Circuit Court is affirmed.