Kelleher v. Chicago City Railway Co. , 167 Ill. App. 325 ( 1912 )

Mr. Presiding Justice Freeman

delivered the opinion of the court.

It is urged in behalf of the defendant that the declaration is insufficient, that the verdict is contrary to law and the weight of the evidence, that plaintiff’s counsel was guilty of improper conduct at the trial and that the Court erred in giving and refusing instructions. The alleged defect in the declaration consists, according to counsel, in its failure to allege facts and circumstances showing that the negligence alleged was the breach of any duty owing to the plaintiff from the defendant since, as it is said, it fails to allege facts or circumstances from which it can reasonably be inferred that the plaintiff was a passenger on the car, or that the relation of carrier and passenger existed between plaintiff and the defendant.

The declaration consists of a single count. It alleges that defendant’s business was that of a common carrier of passengers for hire, and that it ought to have exercised due care to avoid injuring -such passengers; that the defendant’s car had stopped at a usual place of receiving passengers and plaintiff was in the act of getting on the car, when before plaintiff was fully on said car and while he was in the act of boarding the car with reasonable care, defendant’s agents negligently and carelessly caused the car to be suddenly and violently started forward, by reason of which the plaintiff was ‘ thrown violently from said car ’ ’ and injured. The declaration is not open to the objection urged. We deem it unnecessary to refer to the cases mentioned by defendant’s counsel or to take time to analyze and differentiate them. The case of Grace and Hyde Co. v. Sanborn, 124 Ill. App. 472-479 et seq., and the opinion of the Supreme Court in the same case in 225 Ill. 138-141, are we think relevant. In Nellis on Street Surface Railroads, p. 446, it is said: ‘ Certainly where a street car stops at a usual place for passengers and a person in the exercise of due care gets on the steps or platform, or places one foot on the step of the car for the purpose of taking passage while it is so waiting, he is to be regarded as a passenger.” If the plaintiff got on the car for the purpose of taking passage thereon while it was standing still and was as the declaration alleges violently thrown therefrom by the sudden starting of the car when he had gotten but one foot on the car step, he had become in the eye of the law a passenger. In Clark’s Street Ry. Accident Law, 2nd ed. (1904), Section 3, it is said that “a person does not have to be actually on a street car before he becomes entitled to the rights of a passenger. If a car has been stopped on being signalled and he is in the act of getting aboard when the car starts, the relation of carrier and passenger is held to be established.” The question of the sufficiency of the declaration was involved in Chi. Union Traction Co. v. O’Brien, 117 Ill. App. 183-189, and what is there said on this subject by Mr. Justice Adams is we think applicable in the case at bar. Here, as in that case, the substance of the averments in the declaration was “that appellee was impliedly invited to get on the train and was getting on it when the accident occurred. Facts are averred from which the legal conclusion that appellee was a passenger is deducible. We think the declaration sufficient to admit evidence showing that appellee was a passenger.”

The verdict is supported so far as the question of negligence is concerned by evidence in plaintiff’s behalf. The conflict as to whether plaintiff was injured by reason of the car being suddenly started before he could get on or whether he was trying to get on while the car was moving must be deemed concluded by the verdict.

We are unable to concur in appellant’s contention that the evidence relating to plaintiff’s injury by a bullet was necessarily prejudicial and find no reversible error in the admission of the evidence tending to show that a so-called splinter of bone came from the wrist about three years after the injury complained of.

It is urged however that there was reversible error in giving and refusing instructions. The first instruction the refusal of which is complained of would have been erroneous, if given. A car might be “suddenly and violently started forward,” as the declaration charges, without being pnt in “rapid motion,” as stated by the instruction in question. As to the next instruction complained of, which was given at plaintiff’s request, we have already indicated our view that the declaration sufficiently stated facts from which the relationship of passenger and carrier as a matter of law was clearly deducible. There is no error therefore in the reference contained in that instruction to “negligence as charged in the declaration.” In like manner objections are urged to plaintiff’s instructions numbered 2, 3, 6, 7, 8 and 9, and the refusal of plaintiff’s instruction Number 35. Appellant’s brief and argument contains more than 183 printed pages. It must suffice to say that we have considered with care the objections urged in reference to these instructions and find no material or reversible error.

It is urged that the verdict and judgment of three thousand dollars is excessive. That in our judgment the jury were warranted by the evidence in finding the defendant guilty of negligence causing injuries of which the plaintiff complains we have above indicated. There is evidence tending to show that the plaintiff was confined to his bed about four months after the accident, was then around the house and yard about four or five weeks and then went back to work; that for a year he could not lift a heavy load or use a shovel. The accident happened November 1, 1901. Plaintiff testified that until August 31, 1906, when he was again injured as before stated in a railroad accident, he felt fairly well and was apparently doing his usual work the greater part of the time. His injuries up to that time were confined to bruises from his fall at the time of the accident now in question, except that he testifies he saw some traces of blood in his sputum and urine shortly after the accident. There is evidence in behalf of defendant tending to show that many of the symptoms complained of by appellant were such as might be ascribed to rheumatism. Upon this evidence the verdict of the jury fixed the amount of damages at $3000. While if sitting as jurors we might have regarded this amount as excessive, the question was clearly within the province of the jury to determine, and the amount is not so clearly excessive as to justify this court in setting it aside.

Finding no material error in the record, the judgment of the Circuit Court will be affirmed.

Affirmed.