Regan v. McCarthy , 1905 Ill. App. LEXIS 155 ( 1905 )

Mr. Justice Brown

delivered the opinion of the court..

Counsel for appellees insist urgently that there is nothing for this court to consider in this appeal. They say that the bill of exceptions does not purport to contain all the evidence; that all the instructions complained of but one require for their consideration that the evidence should be weighed, and that consequently in the absence of all the evidence they cannot be held erroneous.

We do not agree with these premises, and consequently cannot assent to the conclusion. It seems to us that counsel for appellant took the proper course, and pursued the best practice in summarizing the evidence offered on each side, and reproducing it only far enough to present fairly and properly the questions raised by his assigned errors. Costly v. McGowan, 174 Ill. 76; I. C. R. R. Co. v. O’Keefe, 154 Ill. 508.

We do not think that for the purpose of passing on the four instructions complained of, any weighing of conflicting evidence is necessary. That which the evidence tended to prove is set forth, and we think that in the case of plaintiff’s evidence, at least, the intendment of the language under the certificate of the judge, that “The evidence introduced on behalf of the plaintiff tended to prove the following facts,” would be that all the material parts of such evidence, relating to the instructions complained of in the motion for a new trial, set forth in the same bill of exceptions, were summarized.

We have accordingly considered carefully the instructions in question, and the able and ingenious argument by which' counsel have attacked them. But it seems to us, from a consideration of the whole record as it stands, apparent that substantial justice has been done, and that no future trial could be expected to result in any different verdict.

Therefore this court would be, in any event, much disinclined to disturb the judgment, even if error were found in the instructions, especially if it deemed doubtful whether the jury could have been misled thereby. Nelson v. Richardson, 108 Ill. App. 121; City of Aledo v. Honeyman, 208 Ill. 415.

This consideration is sufficient to dispose of the objections to the 24th instruction, which are only that the words “if any” are inserted after “headlight,” although there was no contradiction in the evidence of the existence of such a light, and the omission to limit the failure of the plaintiff to exercise ordinary care to a failure which contributed to the happening of the accident.

We do not think the jury were misled by either of these alleged errors, nor that they would have been so misled even had the instruction not been supplemented (as it was) by another, (No. 5) which involves the proposition that the negligence of the plaintiff, to prevent recovery, must have contributed to the happening of the accident.

But it is the giving of the three other instructions complained of—1, 2 and 22—that the appellant especially attacks in his argument. Giving them, the appellant suggests, under the circumstances of this case, was equivalent to taking it from the jury, although it was still left to the jury to say whether or not the injury resulted solely from the defendants’ servants not exercising reasonable care to get out of the way of the car. This may be so under the evidence developed in this case. It is conceivable, however, although not perhaps very probable, that a state of things could exist in'which the plaintiff, although able “to see the obstruction ahead of him on the tracks, at a distance within which he could stop his car at the rate of speed he was going,” would not be negligent in failing thus to stop it. The truck, for example, might have been proven to have given some indication of turning out sufficient to mislead the plaintiff and yeti have failed so to turn out.

But whatever may have been the effect of those three instructions, we see no error in the two doctrines which they lay down: first, that there was no negligence shown on the part of the defendants by their not carrying such a light on the truck as would enable the plaintiff to see it when approaching it from behind, even if the fact were as stated; and secondly, that it was negligence per se and as a matter of law for the plaintiff to run his car at such a high rate of speed that he could not stop it within the distance at which he could see an obstruction ahead of him on the track. *

Perhaps it would not be necessary for us to approve this last proposition, for the evidence as summarized tends to show no negligence on the part of the defendants or their servants, unless failure to have a light on the truck that could be seen from behind is to be so held, and without some showing of negligence on the part of the defendants, the absence or presence of negligence on the part of the plaintiff would be immaterial, so far as this judgment ÍS' concerned. But, as we have said, we find no fault with either doctrine laid down in the instructions. To hold any one of these instructions bad would be to hold that the privileges of the street cars in the streets were greater than they have been repeatedly declared to be by the Supreme' Court. The only superiority now allowed them in the streets is the right of way, which, the Supreme Court has said, is for the public convenience and, because the cars are confined to the track, must necessarily be given them. . But it says, “On the other hand a street railway company is charged with the knowledge that the public may lawfully use the entire street, and it must in operating its cars on the street employ all reasonable 'means to avoid injuring those whom it knows may rightfully use that part of the street occupied by its tracks.” North Chicago Electric Ry. Co. v. Peuser, 190 Ill. 67.

In the case at bar the right of way of the street car was conceded. To go further and say that the owners of any heavy truck carrying heavy machinery at night in a sparsely-settled portion of Chicago were guilty of negligence, not only preventing recovery on their part for an injury done to them by an electric car colliding from behind, but also rendering them liable for injury to the car and its operators, simply because they did not carry a light which could be seen from said car, would be, in our opinion, to establish a doctrine very dangerous to the public in general. The great weight, the terrific motive power and the high rate of speed of such cars are known. But it would be very difficult to draw the lines of weight or size or location or time, at which it became the duty of the trucks which carry freight, to reverse the usually received rule and give wárning to, instead of receiving warning from, such cars approaching from behind. The argument ab inconvenienti is here very strong.

Bor do we see anything unreasonable or oppressive in •the absolute rule laid down by the 22nd instruction, that the operator of a street car cannot without negligence run his car at such a rate of speed that he cannot stop the car within the distance at which he could see an obstruction ahead of him on the tracks. Such a rule, on the contrary, .seems to us to fall within the proposition enunciated in the North Chicago Electric Ry. Co. v. Peuser, supra, that “he must employ all reasonable means to avoid injuring those whom he knows may rightfully .use that part of the streets occupied by the cars.” It is approved in obiter dicta as appellant’s counsel concede in Calumet Ry. Co. v. Lynhohn, 70 Ill. App. 371, and Gilmore v. Federal Railway Co., 153 Pa. State, 31.

Counsel for appellant argues that the obligation of an electric road is no greater than that of a steam railroad in this regard, and that it would not be contended that a steam railroad running through a city in the night time is bound to keep down its rate of speed to such a point that it can stop within the distance that its driver can see ahead. But where such railroads cross a street at grade it is obliged to have gates to prevent accidents.

Counsel also say that there is no obligation on the street ear operator to carry a searchlight. Undoubtedly not, provided he keeps the speed of his car within the rate at which he can stop it within the limit of the light he has. But if on streets that are not built up, or on which there is little traffic, or where, for some other reason, he thinks a very high rate of speed is usually proper and advisable, and adopts it, it may well fall within the rule of “reasonable precaution” that he should carry “a searchlight,” if by that is meant a light that will illuminate the track before him for a long distance.

The judgment of the Circuit Court is affirmed.

Affirmed.