{ "id": 3224732, "name": "Sol Segal, a Minor, by David Segal, his Next Friend, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error", "name_abbreviation": "Segal v. Chicago City Railway Co.", "decision_date": "1930-03-11", "docket_number": "Gen. No. 33,825", "first_page": "569", "last_page": "580", "citations": [ { "type": "official", "cite": "256 Ill. App. 569" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "197 Ill. App. 316", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5376157 ], "opinion_index": 0, "case_paths": [ "/ill-app/197/0316-01" ] }, { "cite": "216 Ill. App. 625", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2999503, 2996907, 2995524, 2995359 ], "opinion_index": 0, "case_paths": [ "/ill-app/216/0625-02", "/ill-app/216/0625-04", "/ill-app/216/0625-03", "/ill-app/216/0625-01" ] }, { "cite": "208 Ill. App. 172", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2917988 ], "opinion_index": 0, "case_paths": [ "/ill-app/208/0172-01" ] }, { "cite": "127 Ill. App. 406", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2514085 ], "opinion_index": 0, "case_paths": [ "/ill-app/127/0406-01" ] }, { "cite": "235 Ill. 566", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8500796 ], "pin_cites": [ { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/ill/235/0566-01" ] }, { "cite": "257 Ill. 185", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4720106 ], "opinion_index": 0, "case_paths": [ "/ill/257/0185-01" ] }, { "cite": "235 Ill. 406", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8500363 ], "opinion_index": 0, "case_paths": [ "/ill/235/0406-01" ] }, { "cite": "230 Ill. 462", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5632074 ], "opinion_index": 0, "case_paths": [ "/ill/230/0462-01" ] }, { "cite": "162 Ill. 130", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5512553 ], "opinion_index": 0, "case_paths": [ "/ill/162/0130-01" ] }, { "cite": "170 Ill. 379", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3181246 ], "opinion_index": 0, "case_paths": [ "/ill/170/0379-01" ] }, { "cite": "262 Ill. 228", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4752908 ], "opinion_index": 0, "case_paths": [ "/ill/262/0228-01" ] }, { "cite": "195 Ill. 219", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5585648 ], "opinion_index": 0, "case_paths": [ "/ill/195/0219-01" ] }, { "cite": "95 Ill. App. 497", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5295570 ], "opinion_index": 0, "case_paths": [ "/ill-app/95/0497-01" ] }, { "cite": "309 Ill. 346", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5103019 ], "opinion_index": 0, "case_paths": [ "/ill/309/0346-01" ] }, { "cite": "321 Ill. 341", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5167666 ], "opinion_index": 0, "case_paths": [ "/ill/321/0341-01" ] }, { "cite": "318 Ill. 142", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5150783 ], "opinion_index": 0, "case_paths": [ "/ill/318/0142-01" ] }, { "cite": "308 Ill. 189", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5097921 ], "opinion_index": 0, "case_paths": [ "/ill/308/0189-01" ] }, { "cite": "234 Ill. 125", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5641755 ], "opinion_index": 0, "case_paths": [ "/ill/234/0125-01" ] }, { "cite": "196 Ill. 526", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 841272 ], "opinion_index": 0, "case_paths": [ "/ill/196/0526-01" ] }, { "cite": "245 Ill. App. 622", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3369959, 3376394, 3374061, 3373655, 3370136 ], "opinion_index": 0, "case_paths": [ "/ill-app/245/0622-05", "/ill-app/245/0622-03", "/ill-app/245/0622-04", "/ill-app/245/0622-02", "/ill-app/245/0622-01" ] }, { "cite": "325 Ill. 43", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5181256 ], "opinion_index": 0, "case_paths": [ "/ill/325/0043-01" ] }, { "cite": "312 Ill. 343", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5121513 ], "opinion_index": 0, "case_paths": [ "/ill/312/0343-01" ] }, { "cite": "216 Ill. App. 11", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2999563 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app/216/0011-01" ] } ], "analysis": { "cardinality": 764, "char_count": 18056, "ocr_confidence": 0.521, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.09083174347230283 }, "sha256": "636365e8d1869f99fb1e27c850b8c64eeb370a41b3849a4232d97d598719383e", "simhash": "1:9bace636473e95d9", "word_count": 3107 }, "last_updated": "2023-07-14T18:44:31.530905+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Sol Segal, a Minor, by David Segal, his Next Friend, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error." ], "opinions": [ { "text": "Mb. Pbesidisg Justice Barnes\ndelivered the opinion of the court.\nBy this writ, plaintiff below, a minor, seeks the review of a judgment against him in a tort action brought to recover for the personal injuries he received from his being struck by defendant\u2019s street car.\nOn the first trial of the cause there was a'judgment in his favor. On appeal therefrom (in 1918) we filed an opinion reversing the same and holding that the verdict was against the manifest weight of the evidence as to defendant\u2019s negligence. We allowed a rehearing and reached the same conclusion, and reversed the judgment without remanding the cause. (216 Ill. App. 11.)\nSome years later, in 1924, the Supreme Court in Mirich v. Forschner Contracting Co., 312 Ill. 343, held that the statute authorizing this court to render a final judgment on reversal, required a remandment of the cause in a jury case. Thereafter this cause was carried to the Supreme Court on a writ of error, and, under the ruling in the Mirich case, the cause was sent back here for reconsideration. (325 Ill. 43.) On reconsidering the same we reached the same conclusion of fact, and on reversing the judgment remanded the cause for a new trial. (245 Ill. App. 622.)\nOn the second trial the verdict of the jury was ' against plaintiff and thus in harmony with our previous findings of fact. It is now plaintiff who seeks a review, urging' that the verdict is contrary to the weight of the evidence, and that there was reversible error in instructions given at defendant\u2019s request.\nAs to the first ground: It should be noted first that all of the evidence relating to the occurrence itself heard at the second trial, was read from the bill of exceptions of the first trial, except that of the plaintiff himself, and his testimony was practically the same, and, as may be added, purported to give his recollections of what took place 13 years before, when he was less than 8 years old. In other words, no new witnesses or new evidence as to the accident different from that heard at the first trial was introduced. As to the occurrence, the only difference in the evidence heard at the two trials was that plaintiff omitted the testimony of two of his witnesses, and defendant the testimony of one of its witnesses given on the first trial.\nThe new witnesses were not eyewitnesses of the occurrence. There were four for plaintiff and one for defendant. Of the four, one testified to the number of pupils in attendance at a public school two blocks west of the place of the accident. Two others, former motormen, testified with respect to the distance a car would run after applying the emergency brakes, and the fourth described the manner of unloading materials that were used in paving the street where the accident occurred. Defendant\u2019s new witness testified merely to the dimensions of the car involved, in the occurrence. There was nothing in the testimony of any of these witnesses that had any legitimate tendency to alter the state of facts bearing on a determination of any of the issues of liability.\nIt seems, therefore, that as to the weight of the evidence the same questions upon substantially the same evidence are presented to us for consideration for the fourth time. It could not reasonably be expected that unless at the second trial there was such new material evidence in support of plaintiff\u2019s theory of the accident, or such additional evidence of a corroborative nature as would clearly shift the weight of the evidence in his favor, we could reach a different conclusion from that reached by us on three prior occasions. We would be required not only to reach a diametrically opposite conclusion on substantially the same evidence, but, under well established practice, to say that the verdict was manifestly against the weight of the evidence. We can hardly be persuaded that we so far misconceived its probative force as to be wrong on three prior occasions. Plaintiff\u2019s counsel himself recognizes the \u201cnovelty\u201d of asking this court to reverse on the ground that the verdict against the plaintiff was contrary to the preponderance of the evidence when on our former hearing we reversed the judgment on the ground that the verdict in plaintiff\u2019s favor was against the preponderance of the evidence. Nevertheless, we have again considered the evidence and counsel\u2019s analysis of the same, and are compelled to abide by our former convictions and conclusions, with which the verdict of the jury is now in harmony. Hence, we deem it unnecessary to detail again the salient facts of the case. They are sufficiently stated in our former opinion (216 Ill. App. 11) to which we refer for an adequate understanding of them. We may repeat, however, what we said in that opinion:\n\u201cWe have carefully scrutinized the evidence in this case and think the great weight of the testimony is against the theory that the motorman would by ordinary and reasonable care have discovered the boy before it was too late to stop the car running at a reasonable rate of speed or that defendant was negligent as charged either in operating the car or omitting to perform any duty i\u00a3 owed to the boy under the circumstances. \u201d\nWe reached that conclusion after, as we there said, \u201ccomparing the character, intelligence and apparent reliability of the witnesses, their opportunities for observation, and the consistency of their testimony.\u201d\nIt follows, therefore, that we cannot say that the verdict of the jury in this case was against the weight of the evidence. In fact, we think it was. manifestly in accordance therewith.\nSeveral of the instructions are complained of, some on objections so technical and tenuous that we shall not undertake to discuss them.\nInstruction 22 told the jury that before the plaintiff can recover he must prove by the greater weight of the evidence, first, that defendant was guilty of negligence, second, that such negligence was the proximate cause of the injury, and third, \u201cthat plaintiff himself exercised ordinary care and caution for his own safety at and before the time of the occurrence in question, or in other words, that no negligence on the part of the plaintiff proximately contributed in any degree to bring about his injury.\u201d The instruction then proceeds to say that the burden of proving each of these propositions was upon the plaintiff, and that if he has failed to prove any one or more of them by the greater weight of the evidence the jury must find the defendant not guilty. The instruction then added: \u201cWhere in this instruction it is said that plaintiff must exercise ordinary care and caution, it is meant such care and caution as an ordinarily careful, prudent person of plaintiff\u2019s age, intelligence, capacity and experience would exercise under the same or similar circumstances.\u201d\nInstruction 25 defined the words \u201cordinary or reasonable care and caution, wherever used in these instructions with respect to the plaintiff\u2019s duty,\u201d in practically the same language. Instructions 23 and 24 employed substantially the same language in referring to plaintiff in connection with the, question of contributory negligence, and these several instructions are complained of on much the same grounds.\nIt is strenuously argued by counsel that as plaintiff in error was only about 7 years- and 8 months old at the time of the accident that he would be prima facie incapable of exercising judgment and discretion, and that, therefore, the burden of proof was upon defendant to show whether or not he was capable of exercising care for his own safety; that each of the instructions assumed that he was capable and therefore might be culpably negligent; that he was not called upon to prove that he was capable until defendant had introduced proof to show that he was; and hence instruction' 22, and the others by implication, in these respects and in casting the burden of proof upon plaintiff as to his capacity and exercise of care constituted reversible error.\nOne of the essential elements of an action of this kind is that the plaintiff himself, at the time of and just before the accident causing the injury, be in the exercise of ordinary care for his own safety; and as a general rule, for which we need not cite authorities, the burden of proof rests upon- plaintiff to prove that element, as well as every other essential element of the action. And we think the rule is no different when the plaintiff is between 7 and 14 years of age. In like actions it has been so held in effect. In Illinois Iron & Metal Co. v. Weber, 196 Ill. 526, plaintiff was between 11 and 12 years old. An instruction given in his behalf required that the jury should find from the evidence that he was exercising ordinary care for a boy of his age. Discussing the question of care by the infant and what should be considered in determining it, the court said:\n\u2018 \u2018In determining that question his age was to be taken into account, but it could not be said, as a matter of laiv, that he was too young to exercise any care for his personal safety or that he was incapable of negligence. Unquestionably, he was capable of exercising some degree of judgment and discretion and some degree of care for his own safety.\u201d\nIn McGuire v. Guthmann Transfer CVo., 234 Ill. 125, the plaintiff was a child of only a few months past 7 years of age at the time of the injury. The instruction in his behalf laid down the general rule as to the degree of care the law requires of a child. The company urged that to justify the instruction it was necessary for plaintiff to prove the extent of \u201cintelligence, capacity, discretion and experience\u201d he possessed. The court said: \u201cIn the absence of proof to the contrary, appellee must be presumed to have such capacity to appreciate danger, and such discretion and intelligence in protecting himself therefrom, as might reasonably be expected of an average child of his age and under like circumstances.\u201d In Morrison v. Flowers, 308 Ill. 189, the plaintiff was 8 years old. The court said in slightly varying language, that \u201cin the absence of proof to the contrary he will be expected to exercise that discretion and intelligence in protecting himself that would be expected of an average child of his age under like circumstances.\u201d In Maskaliunas v. Chicago & W. I. r. Co., 318 Ill. 142, and in Deming v. City of Chicago, 321 Ill. 341, the plaintiff was 10 years of age. The court said that the law was clearly established by great weight of authority, that between the ages of 7 and 14 the question of culpability of the child is an open question of fact and must be left to the jury to determine, taking into consideration the age, capacity, intelligence and experience of the child.\nWhile in none of these cases was the question of where the burden of proof lies with respect to the exercise of care by a minor between 7 and 14 years of age, directly raised, we think it clearly inferable therefrom that the general rule requiring the plaintiff to make a prima facie case of his exercise of care as a necessary element to his cause of action, is applicable to infants between 7 and 14 years of age, leaving it an open question of fact for the jury to determine from the evidence under guidance of the proper rule therefor. This is the recognized rule, as stated in 45 C. J. 1191:\n\u201cThe rule as to the burden of proof with respect to contributory negligence where plaintiff is an infant is ordinarily the same as in actions by an adult. . . . Where the exercise of due care by the injured person is part of plaintiff\u2019s case, plaintiff has the burden of proving that the injured infant was free from contributory negligence.\u201d\n\u00d1o question can arise here but that the proper rule for the jury\u2019s guidance was laid down in the several instructions. In fact, instruction 3, given in behalf of plaintiff, states it in substantially the same language as that in the instructions complained of, and the request for it indicates that plaintiff\u2019s own counsel assumed that there was sufficient evidence of plaintiff\u2019s capacity to justify its application. He is hardly in a position, therefore, to complain that defendant\u2019s instructions are based on the same assumption.\nThe distinctions counsel undertakes to make in his argument between the degree of care that would be exercised by \u201can average child\u201d and \u201can ordinarily careful, prudent person of plaintiff\u2019s age,\u201d and between care and caution, and in the omission from instructions of the words \u20181 usually, \u201d \u201c naturally \u2019 \u2019 and \u2018 \u2018 ordinarily \u2019 \u2019 seem rather too refined and subtle to engage the reasoning of an ordinary jury or to appeal to a court of review. It is common knowledge and experience that children between the ages of 7 and 14 have some capacity to exercise care for their own safety, and the cases where they have been so regarded are too numerous to call for citation.\nComplaint is also made that there was needless repetition of instructions on the question of exercising care by the plaintiff. The instructions correctly stated the law on the material issues of the case. And it may be said here, as was said in Carson, Pirie, Scott & Co. v. Chicago Rys. Co., 309 Ill. 346, where like objections were made to like instructions, \u201cwhile needless repetition may give undue prominence to some matter to which the instructions relate, these instructions presented different aspects of the question. . . . But as there was nothing incorrect in them they are not ground for reversal.\u201d (352).\nAppellant complains of defendant\u2019s instruction 13. It tells the jury to measure the testimony of defendant\u2019s employee by the same principles and tests by which the jury should determine the credibility of any other witness. It is a stock instruction which has been given in many cases and was approved in the form given in Cicero & Proviso St. Ry. Co. v. Rollins, 95 Ill. App. 497, affirmed in 195 Ill. 219. The basis of the complaint is that defendant\u2019s employee was an interested witness. It was said in Roberts v. Chicago City Ry. Co., 262 Ill. 228, citing the last mentioned case, that no witness is to be discredited simply because he is employed by a party to the suit; that his testimony is to be treated the same as that of any other witness.\nThe further objection that the instruction assumed that defendant\u2019s employee witnesses were unimpeached is untenable. It was abstract in form and merely declared a rule applicable to an unimpeached witness. Nor do we think it a case where it infringes the rule against singling out a witness or witnesses on one side of the case. (West Chicago St. R. Co. v. Dougherty, 170 Ill. 379, and West Chicago St. R. Co. v. Estep, 162 Ill. 130.)\nInstruction 18 told the jury with reference to the rate of speed at which the car was running that if under all the circumstances and evidence they believed therefrom it was consistent with the exercise of ordinary care, then no negligence could be attributed to defendant in the operation of the car on the ground of the speed at which it was running. It is objected to as singling out a particular fact claimed to be established by the evidence, and in instructing the jury that if they so believed, negligence, could not be attributed to defendant in that respect. In this connection plaintiff cites the cases of Eckels v. Muttschall, 230 Ill. 462; Kenyon v. Chicago City R. Co., 235 Ill. 406, and Hoffman v. Tosetti Brewing Co., 257 Ill. 185, in all of which an instruction singling out a fact was held to have been properly refused. In none of these cases was the instruction quite analogous to the one presented here. But even if the instruction be objectionable we do not think it so prejudicial as to warrant reversal.\nInstruction 16 told the jury that the mere happening of the accident in and of itself raised no presumption of negligence. It not being a passenger and carrier case, or one in which the doctrine of res ipsa loquitur is applicable, we do not think it was error to give the instruction. A presumption sometimes arises from the nature of the accident and the circumstances of it, but never from the mere fact of the accident itself. (Barnes v. Danville St. R. & L. Co., 235 Ill. 566, 573.)\nInstruction 19 told the jury that if they believed from the evidence that in approaching the place in question the car was being operated with ordinary care and that plaintiff got in the way of the car so suddenly that the motorman had no opportunity in the exercise of care and caution, to avoid injuring the plaintiff, then their verdict should be not guilty. It is contended that it limits the motorman\u2019s exercise of care in approaching the place of the accident and ignores whether he was guilty of negligence in operating the car \u201cpast the plaintiff.\u201d We think it was sufficiently comprehensive to cover the whole matter of the issue of defendant\u2019s negligence and is not amenable to the objections raised against it. Similar instructions have frequently been approved. (Scanlan v. Chicago Union Traction Co., 127 Ill. App. 406; Fredericks v. Chicago Rys. Co., 208 Ill. App. 172; Mead v. C. Rys. Co., 216 Ill. App. 625; Margolis v. Chicago City Ry. Co., 197 Ill. App. 316.)\nIt is also urged that instruction 20, directing a verdict for defendant if plaintiff failed to prove recited allegations in his declaration by a preponderance of the evidence, is erroneous in reciting allegations not essential to plaintiff\u2019s cause of action and which it was not necessary for plaintiff to prove. We regard the objection as highly technical and as presenting no good ground for reversing the judgment.\nAfter a careful review of the evidence and the instructions we do not think there was reversible error. The judgment is affirmed.\nAffirmed.\nScanlan and Gridley, JJ., concur.", "type": "majority", "author": "Mb. Pbesidisg Justice Barnes" } ], "attorneys": [ "James 0. McShase, for plaintiff in error.", "Brows, Fox & Blumberg, for defendant in error; Fbask L. Kriete, Charles LeRoy Brows and Abe R. Petersos, of counsel." ], "corrections": "", "head_matter": "Sol Segal, a Minor, by David Segal, his Next Friend, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.\nGen. No. 33,825.\nOpinion filed March 11, 1930.\nJames 0. McShase, for plaintiff in error.\nBrows, Fox & Blumberg, for defendant in error; Fbask L. Kriete, Charles LeRoy Brows and Abe R. Petersos, of counsel." }, "file_name": "0569-01", "first_page_order": 641, "last_page_order": 652 }