{
  "id": 2895841,
  "name": "Auguste Wende, Administratrix, Appellee, v. Chicago City Railway Company, Appellant",
  "name_abbreviation": "Wende v. Chicago City Railway Co.",
  "decision_date": "1915-03-29",
  "docket_number": "Gen. No. 20,307",
  "first_page": "164",
  "last_page": "172",
  "citations": [
    {
      "type": "official",
      "cite": "192 Ill. App. 164"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
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    "ocr_confidence": 0.536,
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    "simhash": "1:2af6cabc100a7470",
    "word_count": 2980
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  "last_updated": "2023-07-14T19:32:59.384140+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Auguste Wende, Administratrix, Appellee, v. Chicago City Railway Company, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Brown\ndelivered the opinion of the court.\n2. Appeal and error, \u00a7 1571 -\u2014when irregularity in entry of judgment not ground for reversal. Even though the form in which a judgment is entered is deficient and irregular, such deficiency and irregularity is not ground for reversal.\n3. Pleading, \u00a7 223*\u2014what effect of overruling of demurrer to count of amended declaration. Where a plea of the statute of limitations filed to the count of a declaration as amended is demurred to and the demurrer is overruled and plaintiff elects to stand by the demurrer, there is, under the strict rules of pleading, no issue of fact left on that count or any part of it for the jury to try.\n4. Appeal and ebbob, \u00a7 1590*\u2014when error in procedure not ground for reversal. Where a demurrer is filed to a count of. the original declaration and the plaintiff amends and issue is joined, after which plaintiff files an amendment to the amended count, whereupon defendant pleads the statute of limitations to the \u201ccount of the amended declaration as amended,\u201d to which plaintiff demurs and,' upon the demurrer being overruled, elects to stand by it, and in the course of the trial both parties and the court treat the ruling of the court on the demurrer as applying only to the final amendment and not to the count as it originally stood in the amended declaration, such error and irregularity in procedure is not ground for reversal.\n5. Stkeet baxlboads, \u00a7 133*\u2014when insufficiency of fender question for jury. In an action to recover for the death of a child run over by a street car, alleged to have been caused by defendant street car company\u2019s failure to provide a sufficient fender, where there is evidence from which the jury might, as reasonable men, have concluded that defendant had failed to have an efficient and serviceable fender at that time, and that this was negligence which resulted in the death, a verdict for plaintiff\u2019s intestate will not be disturbed.\n6. Negligence, \u00a7 191*\u2014when question for jury. In an action to recover for death by wrongful act, negligence and contributory negligence are peculiarly questions for the jury.\n7. Negligence, \u00a7 106*\u2014when negligence cannot he imputed to parent. In an action to recover for the death of a nine-year-old child run over by a street car in crossing the track on an errand for her mother, negligence cannot be imputed to the father who had no part in sending the child upon the errand.\n8. Negligence, \u00a7 202*\u2014when not imputed to parent as matter of law. It cannot be held negligence, as a matter of law, for a mother to send a normal child nine years of age a few blocks through uncrowded streets on a necessary household errand.\n9. Negligence, \u00a7 230*\u2014what instruction proper as to degree of care required of infant. In an action to recover for the death of a nine-year-old girl run over by a street car, an instruction that the due care and caution required of the child was \u201cthat which might reasonably be expected under the same or like circumstances of a girl of\u201d a given \u201cage, experience and capacity to comprehend and avoid the danger,\u201d is proper.\n10. Negligence, \u00a7 95*\u2014what degree of care required of child. In an action to recover for the death of a nine-year-old girl run over by a street car in crossing the track, the risk taken by her in allowing herself insufficient time to escape and in crossing the track elsewhere than at a street intersection cannot be judged as in the case of an adult, but there must be taken into account her \u201cage, experience, intelligence and capacity.\u201d\n11. Negligence, \u00a7 201*\u2014when negligence of child a question for jury. In an action to recover for the death of a nine-year-old child run over by a street car, where the evidence is conflicting as to whether or not the accident was due to the negligence of deceased, the question is for the jury.",
        "type": "majority",
        "author": "Mr. Presiding Justice Brown"
      }
    ],
    "attorneys": [
      "Busby, Weber, Miller & Robinson, John E. Kehoe and Arthur J. Donovan, for appellant; Leonard A. Busby and J. B. Guilliams, of counsel.",
      "Alexander H. Heyman, for appellee."
    ],
    "corrections": "",
    "head_matter": "Auguste Wende, Administratrix, Appellee, v. Chicago City Railway Company, Appellant.\nGen. No. 20,307.\n(Not to be reported in full.)\nAppeal from the Circuit Court of Cook county; the Hon. Kick-ham Scanlan, Judge, presiding. Heard in this court at the March term, 1914.\nAffirmed.\nOpinion filed March 29, 1915.\nStatement of tlie Case.\nAction by Auguste Wende, administratrix of the estate of Ella Wende, deceased, against Chicago City Railway Company, a corporation, defendant.\nThe action was brought under the \u201cCampbell Act\u201d of the State of Illinois by the administratrix of Ella Wende for the benefit of her next of kin. The original declaration in four counts was filed August 10, 1911. A demurrer to this declaration and each count thereof having been sustained,' an amended declaration in four counts was filed November 10, 1911. In each of the counts of this amended declaration it was charged that the defendant, the Chicago City Railway Company, on May 14, 1911, by its negligence caused the death of Ella Wende, a girl of the age of nine years, while she was attempting to cross the tracks of the defendant at or near the intersection of Sixty-Ninth and Justine streets in the city of Chicago.\nThe first count charged that the defendant \u201cby its servants so carelessly, negligently and improperly . drove,, managed and propelled a certain trolley car that it ran down and killed Ella Wende.\nThe second count specified the alleged negligence in managing the car to be \u201cthat the servants in charge of said car in approaching the said crossing known as' Justine street failed to ring the gong or give any warning of the approach of said car at or near the said crossing\u201d; that the motorman of said car \u201cfailed to give warning of the approach of said car to those who were then and there about to cross said tracks at or near Justine street.\u201d\nThe third count alleged \u201cthat the said defendant by its servants were then and there driving in an easterly direction a certain trolley car along the said West 69th street * * * and while the said deceased, Ella Wende * * * with the due care and diligence of a child of nine years of age was * * * attempting to cross the tracks of the said defendant, said Ella Wende fell directly in front of the fender in front of the said car,\u201d and \u201cthat at the time aforesaid there was a valid existing ordinance of the said City of Chicago which made it the duty of the defendant to provide a useful and efficient and serviceable fender, and that at the said time and place there were valid existing city ordinances, which ordinances are in the words as follows:\n\u201cSec. 1963. Fenders. Every person or corporation controlling, operating or owning any street railway in the City shall equip and provide each and every car used on such street railway with fenders of steel and of the basket kind, which said fenders shall be substantially attached to the front end of such car so as to guard passengers or pedestrians from being\u2019 injured or thrown under the wheels of the car in case of a collision or other accident, provided, however, that where such cars are operated in trains or where such car is attached to a grip car or other car such fender need only be provided upon the grip car or front car of such train. \u2019 \u2019\nAlso:\n\u201cAn Ordinance Authorizing the Chicago City Railway Co. to construct, maintain and operate a system of Street Railways in Streets and Public Ways of the City of Chicago. (Passed by the City Council of The City of Chicago Feb. 11,1907.)\nSec. 10. All cars shall be equipped with efficient and serviceable fender devices, headlights and sandboxes;\u201d and that \u201cit hecame and was the duty of the defendant to observe and conform to the said City ordinances and to have upon its said car a proper, useful and serviceable and efficient fender;\u201d that \u201cif the said defendant had complied with the ordinances aforesaid and had had such a fender upon the car, Ella Wende would not have been killed or seriously injured; that on the contrary such a fender would have protected and saved the deceased;\u201d but that the defendant \u201cfailed to comply with the terms of the said city ordinances and had then and there upon the said car an old, defective, useless and non-efficient fender,\u201d and \u201cthe said fender when the deceased struck it failed to work properly, whereby the body of plaintiff\u2019s intestate was permitted to get under the trucks and other parts of the car and thereby the plaintiff\u2019s intestate was killed.\u201d\nThe fourth count, which alleged defects in the roadbed of the defendant, was, during the trial, withdrawn by an order of discontinuance as to the same, made at the instance of the plaintiff.\nOn April 2, 1913, leave was given to the plaintiff \u201cto amend the third amended count in the declaration filed in said cause\u201d and a paper was filed entitled in the cause and headed: \u201cAmendment to 3rd Amended Count.\u201d It proceeded:\n\u2018 On page 8, last paragraph extending on page 9 of Amended Declaration strike out the following:\nSec. 1963. Fenders.\u201d (Then follows the Section as we have before given it) \u201cand insert in its place the following:\nSection 2165. Fenders : Every person or corporation controlling, operating or owning any street railway in the city shall equip and provide each and every car used on such'street railway with fenders, which shall be of a type and design satisfactory to the Commissioner of Public Works and which shall be securely attached to the front end of such car so as to guard passengers or pedestrians from being injured or thrown under the wheels of such car in case of a collision or other accident.\u201d\nDefendant filed a plea of the statute of limitations to \u201cthe third count of the amended declaration as amended, \u2019 \u2019 to which plea plaintiff filed a demurrer.\nAn order overruling plaintiff\u2019s demurrer to defendant\u2019s plea of the statute of limitations was entered September 15, 1913, before the beginning of the trial, as follows:\n\u201cOn motion for defendant it is ordered that the demurrer of the plaintiff to the Plea of the Statute of Limitations filed by the defendant April 4 is overruled. Plaintiff objects and excepts to ruling of Court and elects to stand by demurrer. On motion of attorney for defendamt suit dismissed as to the amendment to the third amended count filed by plaintiff on April 2, 1913, and issues being joined herein it is ordered that a jury come, etc.\u201d\nDuring the trial objections to evidence concerning fenders were made by the defendant\u2019s counsel on the ground that the third count of the amended declaration was no longer in the case, but they were overruled by the trial judge. On the hearing of the motion for a new trial, counsel for the defendant insisted on the point, but the Court replied to him that the \u201cplaintiff tried to amend the third count but did not amend it. The plea of the statute was sustained as to that amendment. * * * The plaintiff did not attempt to draw an amended third count. He simply attempted to file an amendment to the third amended count. You already had a plea of the general issue to the third amended count.\u201d After an extended discussion the Court said:\n\u201cThere is no question that the Court held the third amended count of that date was still in the case. The case was tried on that theory. * * * It was assumed all through the case that the third amended count was in the case. \u2019 \u2019\nAfter full consideration of the matter by the trial judge he entered the following order October 18, 1913:\n\u201cOn motion of the attorney for plaintiff the order made and entered September 15,' 1913, by the Court is hereby amended and corrected so as to read as follows :\nOn motion of defendant it is ordered that the demurrer of the plaintiff filed May 12, 1913, to the plea of the statute of limitation filed April 4, 1913, is overruled, to which ruling the plaintiff excepts and elects to stand by his demurrer.\nDefendant asks for judgment on the plea of the Statute of Limitation filed April 4, 1913, and that the suit be dismissed as to the third amended count filed November 10, 1911, as amended April 2, 1913, and the Court denies the motion of the defendant to dismiss the suit as to third amended count filed November 10, 1911, as amended April 2, 1913, to which ruling defendant excepts and the Court dismissed the suit as to the amendment to the third amended count filed April 2, 1913; and the Court further orders that the third amended count filed November 10, 1911, and the plea of the general issue of defendant thereto and the replication of the plaintiff thereto stand, to which the defendant excepts and thereupon the defendant moves the Court to vacate the foregoing order, which motion is by the Court continued.\u201d\nNovember 28, 1913, the motion last referred to was denied in a \u201cjudgment order\u201d entered on that day, which reads in the transcript of record before us as follows:\n\u201cAugmste Wende, Administratrix of the Estate of Ella Wende, deceased,\nvs. Case No. 306672.\nChicago City Eailway.\nOn motion of attorney for plaintiff motion of deft, to vacate order of Oct. 18, 1913, denied. Exception by deft. Motion of plff. to file additional count to conform to proof denied. Exception by plff.\nMotion for a new trial denied. Exception by defendant. Motion in arrest of judgment by deft, denied. Exception by deft. Judgment on verdict $3000. Three Thousand Dollars and costs of suit. Exception by deft. Appeal prayed by defendant and allowed to Appellate Court, first district, bond $3500.00 thirty days and bill of exceptions in thirty days. $3000.\u201d\nThe plaintiff did not offer the ordinance set forth in the count under the heading \u201cSee. 1963,\u201d but did offer that portion of section 10 of the Franchise Ordinance, so-called, which was also set forth in that count; and although the counsel for the defendant objected to its introduction on the ground that 11 count three \u2019 \u2019 was \u201cout of the pleadings,\u201d yet when the trial judge promptly signified, not only that he considered the third.count of the declaration of November 10, 1911, in the cause, but as presenting a very important issue therein, the counsel for the defendant as promptly met that position with contentions centering on fenders and the rights and duties of the Company under the ordinances in relation thereto.\nThe counsel for defendant during the trial offered in evidence parts of the \u201cfranchise ordinance,\u201d or asked counsel to stipulate that parts of the same ordinance should go in the record for the benefit of the defendant, and cross-examined the witnesses of plaintiff on the fender question,\u201d and argued the matter to the jury.\nThe evidence showed that the body of the child was found under the fender of the car. The evidence concerning the fender was that it was of the approved and required style. Plaintiff contended that if it did not work properly it was the fault of that particular fender which rendered it \u201cunserviceable and inefficient;\u201d that the car was just coming from the barn and should have been properly equipped.\nDefendant contended that the fender was in order, and it introduced evidence to the effect that this automatically working fender had actually worked as it was intended to when it had struck the body of the child; that the \u201capron,\u201d that part which strikes the object on the tracks, had been thrown back and had caused the basket part of the fender, designed to pick the object from the tracks before the wheels could pass over it, to be thrown down and to lie upon the rails. It contended also that the probable reason that the girl\u2019s body went under it was that her hand or foot had fallen into a depression between the tracks.\nAbstract of the Decision.\n1. Street railroads, \u00a7 131 \u2014when evidence insufficient to show negligence in operation. Where, in. an action for the death of a child, alleged to have been caused by defendant\u2019s negligence in operating its car, in running it at an improper rate of speed and not .ringing its gong, the weight of the evidence shows that the motorman was attending properly to his duties; that the car was not running at an improper rate of speed; that, even if the gong was not sounded, the circumstances were not such as to make the omission to ring it negligence; that when the child\u2019s danger was known to the motorman, the motorman tried to warn her and made every possible effort to stop the car, defendant cannot be held negligent\nThe evidence was conflicting concerning the fender and its situation immediately after the accident. Witnesses for the plaintiff testified that the fender was \u2018/up,\u2019,\u2019 not \u201cdown,\u201d after the accident, which amounted in effect to saying that it \u201chad failed to work,\u201d which indeed was the definite statement of one witness,.which statement, however, was stricken out by the court as a conclusion and incompetent. The same witness testified that he saw an employee of the defendant put the fender down after the accident.\nTo reverse a judgment for plaintiff for three thousand dollars, defendant prosecutes this appeal.\nBusby, Weber, Miller & Robinson, John E. Kehoe and Arthur J. Donovan, for appellant; Leonard A. Busby and J. B. Guilliams, of counsel.\nAlexander H. Heyman, for appellee.\nSee Illinois Notes Digest. Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number."
  },
  "file_name": "0164-01",
  "first_page_order": 188,
  "last_page_order": 196
}