Campe v. Chicago City Railway Co.

Mr. Justice Smith

delivered the opinion of the court.

The question which thrusts itself to the fore, upon a review of the evidence in this record, is, did the deceased 0 ’Donnell exercise due care in driving his team just prior to and at the time of the collision? The burden of proof was on the plaintiff to establish by a preponderance of the evidence the necessary averment of the declaration that he was exercising due care and caution for his own safety. Does the evidence sustain this averment? Upon a careful consideration of the evidence we are of the opinion it does not.

There is no real controversy in the evidence as to the course which O’Donnell’s team took from a point on the west side of State street north of Thirty-fourth street to the point of collision, when the times of viewing the carriage and the positions of the witnesses are considered. That course is outlined in the above statement. It appears to have been purposeless, unusual and singularly erratic, and wholly without regard to the approach of the defendant’s train which was in plain view with nothing intervening to interfere with or obstruct O’Donnell’s view for a moment. The evidence presents no reason or excuse for driving from the west side of the street, where he belonged while driving south, to the east side, and then turning in a southwesterly direction and proceeding to a point between the north-bound and south-bound tracks without clearing the north-bound track, thus putting himself directly in front of the approaching train. O’Donnell’s course from this point directly south toward the approaching train, while the gong was being sounded and the headlight and other lights were burning, cannot be reconciled with the exercise of due care and caution on his part. The only fact which appears in the evidence, indicating any care for his own safety and welfare, is that the left wheels of his carriage skidded or slid along the track for twenty feet before the collision occurred. This fact, however, does not mean much as indicating an effort to avoid the train in view of the further facts, that 0 ’Donnell had no load in his carriage, and the distance directly south which the team traveled, and the speed at which the team was going and that it was continued unchecked up to the moment of the collision. There could be no difficulty in driving an empty carriage across the tracks, or in pulling it out of the track of the approaching train, with the slightest care on the part of the deceased. We are constrained to the conclusion, from all the circumstances of the case, that 0 ’Donnell was not exercising the slightest care in driving his team. The course the team took and the speed at which it traveled up to the moment of the collision warrants the belief that 0 ’Donnell was either asleep or stupified. We do not base the belief that he was stupified upon the evidence that after he was taken to the hospital the odor of liquor was about Mm, for liquor may have been administered to him as a restorative in the drug store to which he was taken immediately after the accident. But the aimless and unaccountable course of his team lends support to the testimony of Arthur Tremah, the grip-man, brought out on cross-examination:, that the driver of the carriage did not have any control of the horses and did not appear to be paying any attention to anything. He sat with his hands hanging down and the reins “were hanging loose.” This testimony is not specifically denied, although some of the witnesses testify that they did not notice anything peculiar about the driver of the carriage.

On this issue of want of due care or contributory negligence on the part of deceased there is substantially no direct evidence on the part of the plaintiff that O’Donnell was exercising ordinary care, but there is ' much evidence tending to establish a failure to exercise any care whatever. We think he was guilty of contributory negligence. As the court said in Chicago West Div. Ry. Co. v. Bert, 69 Ill. 388, where the plaintiff was driving in Milwaukee avenue and a street car was going in the opposite direction: “It was his duty, under such a state of facts, .to turn out to avoid the -car, the driver of- the car being unable to turn to the right or to the left, and if through negligence or wilfulness on his part in. this respect, a collision ensued, he is not entitled to recover damages against the company, even if the latter were also in default.” This rule was reiterated in North Chicago Electric Ry. Co. v. Peuser, 190 Ill. 67. See also Chicago Ry. Co. v. Soszynski, 134 Ill. App. 149; Chicago Union Trac. Co. v. Jacobson, 217 Ill. 404, 408; Memphis Street Ry. Co. v. Roe, 118 Tenn. 601; South Covington & C. St. Ry. Co. v. Besse (Ky. Ct. of Appeals, 1908), 108 S. W. 848; Allworth v. Muskegon Trac. Co., 142 Mich. 25.

On the question of defendant’s negligence, the witnesses Tremah and Cady give the course of O’Donnell’s team as above stated from a point north of Thirty-fourth street to the point of collision. True-heart, Hendricks and Herron were passengers on the trailer car, and their attention was first attracted by the ringing of the gong and the application of the brakes in stopping the car. At that time the team Was in the center of the street coming directly south with the left wheels in the middle of the north-bound track or on the west rail of that track, and about seventy-five or one hundred feet from the car. These witnesses and Tremah say that the car came to a stop before the collision and that the horses came straight on without attempting to turn out until they were close to the grip car and then they swerved to the west enough to miss the car. Mulcahy, the conductor, corroborates these witnesses as to the sounding of the gong and the stopping of the car before the crash of the collision.

Some contradictions and inconsistencies appear in the testimony of these witnesses as to distances given, and intervals of time, and also some differences between their testimonies given before the coroner upon the inquest and on the trial of the case, but the substance of their testimony is uncontradicted except by the testimony of Mrs. Sack as to the rate of speed the car was running at the time of the collision. Mrs. Sack viewed the collision from a window at No. 3406 State street. She says that the car had not stopped at the time of the collision, and that it was running at the ordinary rate of speed. She is the only witness on behalf of the plaintiff who saw the collision. In view of the circumstances and the undisputed fact that the car did not cover any space after the collision, we think she is mistaken as to the speed of the car and that it was moving at that time. If it had been running at the ordinary speed at that time the relative positions of the train and carriage could not have been as they were shown by the evidence when both carriage and train stopped, and the carriage would have been hurled to one side and probably overturned.

The whole testimony considered, we are of the opinion that the defendant was not guilty of negligence and the plaintiff is not entitled to recover in this action.

In view of this conclusion on the liability question, it is unnecessary for us to consider the other errors assigned and argued.

The judgment of the Circuit Court is reversed with a finding of fact.

jReversed with finding of fact.