{ "id": 5306409, "name": "James F. Pendleton v. Chicago City Railway Company", "name_abbreviation": "Pendleton v. Chicago City Railway Co.", "decision_date": "1901-12-24", "docket_number": "Gen. No. 9,504", "first_page": "405", "last_page": "409", "citations": [ { "type": "official", "cite": "120 Ill. App. 405" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "95 Ill. 383", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2722983 ], "opinion_index": 0, "case_paths": [ "/ill/95/0383-01" ] }, { "cite": "85 Ill. 194", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2775501 ], "opinion_index": 0, "case_paths": [ "/ill/85/0194-01" ] }, { "cite": "166 Ill. 87", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5498161 ], "opinion_index": 0, "case_paths": [ "/ill/166/0087-01" ] }, { "cite": "15 Ill. App. 80", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 6045720 ], "opinion_index": 0, "case_paths": [ "/ill-app/15/0080-01" ] }, { "cite": "65 Ill. App. 644", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5185118 ], "opinion_index": 0, "case_paths": [ "/ill-app/65/0644-01" ] }, { "cite": "156 Ill. 244", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3023341 ], "opinion_index": 0, "case_paths": [ "/ill/156/0244-01" ] }, { "cite": "139 Ill. 596", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3006323 ], "opinion_index": 0, "case_paths": [ "/ill/139/0596-01" ] } ], "analysis": { "cardinality": 485, "char_count": 8412, "ocr_confidence": 0.541, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1576080304295733 }, "sha256": "665715f03ed8ac1823d4331dc662b502c6a0496c16f666aa8f3cc854030376f5", "simhash": "1:b261b6c15cff71f0", "word_count": 1421 }, "last_updated": "2023-07-14T14:38:55.672753+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "James F. Pendleton v. Chicago City Railway Company." ], "opinions": [ { "text": "Mr. Presiding Justice Freeman\ndelivered the opinion of the court.\nThis is a suit for personal injuries. A verdict was returned in favor of appellee and from the judgment in accordance therewith this appeal is prosecuted.\nAppellant received the injuries complained of the latter part of November, 1895, about eight o\u2019clock at night, when it is said the space between the rails of appellee\u2019s tracks was frozen over and slippery. Appellant ran across a vacant lot and approached the tracks from the east. He passed behind the first of two trains one running some distance behind the other and going north on the east rail of appellee\u2019s double tracks, crossed over the east rail, and was obliged to stop there by a train going south on appellee\u2019s west track which apparently he desired to take, and which was passing directly in front of him when he reached the space between the east and west of appellee\u2019s tracks. The second of the two north-bound trains was then approaching on the east track which appellant had just crossed, and according to the statement of appellant\u2019s counsel the gripman on said train \u201cshouted to appellant, who thereupon threw up his hands, seemed frightened and immediately commenced to retrace his steps,\u201d starting back easterly across the east track. It is stated that he slipped and stumbled, but was near or upon the east rail of said east track, when he was struck by the east or right hand corner of the approaching train.\nIt is claimed that when the gripman shouted to appellant the car was about seventy feet distant, and could have been easily stopped in less than half that distance; and it is claimed that instead of trying to stop, the gripman ran at full speed against appellant, making no effort to stop until after the injury had been inflicted. It is urged that appellant\u2019s evidence discloses \u201ca case of reckless, wanton and wilful misconduct on behalf of appellee which rendered it liable for the injury to appellant, no matter what his negligence may have been in going upon the tracks.\u201d\nThere was evidence introduced on behalf of appellee tending to show that appellant ran from the sidewalk directly against the northeast right-hand corner of the grip car, and that appellee was guilty of no negligence whatever. The evidence was conflicting, and unless misled by improper instructions the verdict of the jury must be regarded as settling the issue of fact in favor of appellee.\nThe jury were instructed at the instance of appellant, that if they believed the said injury was inflicted \u201c recklessly, wilfully and wantonly, and that such recklessness, wilfulness and wantonness was the proximate cause of the injury to the plaintiff, then the jury are instructed that even though the jury may believe from the evidence that the plaintiff was guilty of negligence which contnb. uted to the injury to himself, yet such negligence on his part will not, if the injury was so inflicted, prevent him from recovering, if he is otherwise entitled to recover.\u201d\nThe propriety of the foregoing instruction is not questioned. It has been held that contributory negligence on the part of the person injured does not relieve the party inflicting the injury from liability, if by the exercise of ordinary care after discovering the danger the accident could have been prevented, in other words, if the party has been guilty of wilful and wanton conduct; or if such party has been thus guilty in failing to discover the danger through recklessness or carelessness when the exercise of ordinary care would have discovered the danger and averted the calamity. L. S. & M. S. Ry. Co. v. Bodemer, 139 Ill. 596-606, and cases there cited. In Wabash R. R. Co. v. Speer, 156 Ill. 244-251, it is said : \u201cIt is well settled that where the injury results from the reckless, wilful or wanton act of the defendant, the plaintiff\u2019s right of recovery will not be defeated by his mere negligep.ce, however great.\u201d See, also, C. & N. W. Ry. Co. v. Smedley, 65 Ill. App. 644-647, and cases there cited.\nIt is, however, urged in behalf of appellant that the court erred in giving at the instance of appellee instructions which it is said contradict the legal principles stated in the foregoing instruction given at appellant\u2019s request. That some of the appellee\u2019s instructions so given are, when considered by themselves, liable to such imputation, is not seriously denied by its attorneys. The court told the jury, at the instance of appellee, after defining ordinary care, that \u201c if a person receives an injury by reason of his failure to exercise such ordinary care, caution and prudence, or if he by the exercise of such ordinary care, caution and prudence would have avoided the injury, then he cannot recover for such injury,\u201d thus ignoring the principle before stated, that the absence of such ordinary care and. caution would not defeat the right of recovery, where the injury was caused by a reckless, wilful or wanton act of the party by whom it was indicted. The same error appears in different form in three other of the instructions given at the request of appellee\u2019s attorneys. These errors may, we think, reasonably be attributed not only to the mistake of appellee\u2019s counsel in asking instructions having no application under the declaration, but to the further fact that they asked the court for forty-one instructions, of which twenty were refused and at least four more should have been. To require the trial court to pass upon such a number of instructions, many of which were not called for in the case, was to invite an oversight oftentimes difficult to be avoided, and is a practice worthy only of condemnation.\nIt is urged that the judgment must be reversed because of these contradictions in the instructions given. That the contradiction is positive and repeated is beyond controversy. It may very well be that the verdict of the jury in appellee\u2019s favor was amply justified by the evidence. The fact remains that there was some evidence tending to sustain the charges of recklessness, wilfulness and wantonness in the declaration. The jury were told, nevertheless, that if they believed from the evidence the plaintiff, if he had exercised due care for his own safety, would not have been hurt, then he could not recover and it was their duty to return a verdict of not guilty; whereas,-as we have said, it made no difference whether appellant was guilty of want of due care or not, if he was wilfully and wantonly injured by appellee. The instructions do not, when considered together, correctly state- the law, and they conflict in a way which might very well mislead the jury. Under such circumstances the cause should be sent back for a new trial. L. S. & M. S. R. R. Co. v. Elson, 15 Ill. App. 80-83. In C., B. & Q. R. R. Co. v. Naperville, 166 Ill. 87-94, it is said: \u201cIt cannot be known what instructions the jury followed.\u201d See, also, Quinn v. Donovan, 85 Ill. 194-196; Steinmeyer v. The People, 95 Ill. 383-390.\nFor the errors indicated the judgment must be reversed and the cause remanded.\nReversed and rema/nded.", "type": "majority", "author": "Mr. Presiding Justice Freeman" } ], "attorneys": [ "Brandt & Hoffmann, for appellant.", "W. J. Hynes and S. S. Page, for appellee; Mason B. Starring, of counsel." ], "corrections": "", "head_matter": "James F. Pendleton v. Chicago City Railway Company.\nGen. No. 9,504.\n1. Contributory negligence \u2014 when does not defeat recovery. Contributory negligence on the part of the person injured does not relieve the party inflicting the injury from liability, if by the exercise of ordinary care after discovering the danger the accident could have been prevented, in other words, if the party has been guilty of wilful and wanton conduct; or if such party has been thus guilty in failing to discover the danger through recklessness or carelessness when the exercise of ordinary care would have discovered the danger and averted the calamity.\n2. Instruction\u2014when erroneous, ground for reversal. When an instruction is erroneous and conflicts with other instructions given in a cause, so that all the instructions when considered together are calculated to mislead the jury with respect to a material matter, a reversal will be ordered.\nAction on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon.. Axel Chytraus, Judge, presiding.\nHeard in the Branch Appellate Court at the October term, 1900.\nRehearing allowed January 7, 1902.\nOpinion refiled October 13, 1903.\nReversed and remanded.\nOpinion filed December 24, 1901.\nBrandt & Hoffmann, for appellant.\nW. J. Hynes and S. S. Page, for appellee; Mason B. Starring, of counsel." }, "file_name": "0405-01", "first_page_order": 443, "last_page_order": 447 }