Chicago City Railway Co. v. McDonough , 1905 Ill. App. LEXIS 336 ( 1905 )

Me. Justice Ball,

dissenting:

The deceased knew the streets that the engine was traversing, for he had ridden along and over them many times. He knew that a double track street railway lay in Ashland avenue, along which the cars of appellant were accustomed to come and go with great rapidity. He knew that 51st street from Marshfield avenue to Ashland avenue was built up on each side, so that, until the engine came within 100 feet of the tracks in Ashland avenue, he could not see north or south along that avenue: He knew that a car coming from, either direction might be nearing the crossing at 51st street at the instant the engine should come from that street into the avenue. Yet, knowing these things, and having full control of the engine—for he was the lieutenant in charge—as, soon as the horses had made the turn from Marshfield avenue into 51st street he urged them on, saying to the driver, “Keep on going; go on; keep on going.” As a result the horses, galloped east on 51st street, going faster and faster as" they neared the fatal crossing, until their speed was so great that they could not be stopped before they reached the crossing after the engine had come to a point where the deceased could see north and south along Ashland avenue.

The rights of the engine and of the car at this crossing were equal. Each was -bound to use ordinary care to avoid a collision at that point. The conduct of the deceased directly contributed to the happening of this accident. There was a want of ordinary care upon his part. Under all the authorities, where the rights of two parties are equal, and a collision occurs through the contributory negligence of the party injured therein, he cannot recover damages from the other party, even though the latter was also guilty of negligence which directly contributed to the injury. Aurora B. Ry. Co. v. Grimes, 13 Ill., 585; C. & M. Ry. Co. v. Patchin, 16 Ill., 202; C. & G. U. Ry. Co. v. Fay, 16 Ill., 558; C. & A. Ry. Co. v. Gretzner, 46 Ill., 83; Kepperly v. Ramsden, 83 Ill., 354; W. Chicago St. Ry. Co. v. Linderman, 187 Ill., 468; C. B. & Q. Ry. Co. v. Dougherty, 12 Ill. App., 192; City of Alton v. English, 69 Ill. App., 198; Chicago C. Ry. Co. v. Canevin, 72 Ill. App., 84.

Again, the deceased just before and at the time of the accident was violating the ordinance relating to the manner in which engines may be driven to a fire. Our courts have declared that one who is injured while in the act of violating an ordinance cannot recover for such injuries. Morse v. Sweenie, 15 Ill. App., 486; Maxwell v. Durkin, 86 Ill. App., 257; U. S. Brewing Co. v. Stoltenberg, 211 Ill., 537.

It will not do to say that the deceased and his men were responding to an alarm of fire, and therefore they had the right to traverse the streets at a high and dangerous rate of speed. Such is not the law. The streets are for the' use of all. Every one passing along them must use due care not to injure another who is lawfully upon them. In the use of • our streets there is not one rule for the fire engine, a second for the automobile, a third for the carriage and a fourth for the pedestrian. We are all under the reign of the same law, while upon a public highway, whether we walk or ride, and whether our errand is one of pleasure, of private business, or • of public concern. Until the legislature or the common ■council see fit to grant to fire engines “the right of way,” they are hound by the same law which governs the humblest vehicle.

For the reasons thus briefly stated, I am compelled to dissent from the opinion of the majority of the court.