{ "id": 5780952, "name": "Kankakee Electric Railway Co. v. John Lade", "name_abbreviation": "Kankakee Electric Railway Co. v. Lade", "decision_date": "1894-12-13", "docket_number": "", "first_page": "454", "last_page": "458", "citations": [ { "type": "official", "cite": "56 Ill. App. 454" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "34 Mich. 214", "category": "reporters:state", "reporter": "Mich.", "opinion_index": 0 } ], "analysis": { "cardinality": 452, "char_count": 10271, "ocr_confidence": 0.48, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.3926970259656065 }, "sha256": "0257cf3c9cc5dcaa466e342adcf779fd347814c47a05fca451da9e94f9298bb8", "simhash": "1:2090bd962c86c68e", "word_count": 1830 }, "last_updated": "2023-07-14T21:04:37.497383+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Kankakee Electric Railway Co. v. John Lade." ], "opinions": [ { "text": "Mr. Presiding Justice Lacey\ndelivered the opinion of the Court.\nThis was a suit in action on the case, by appellee, instituted in the Circuit Court against appellant, to recover for injuries caused, as alleged in the declaration, by appellant\u2019s car frightening appellee\u2019s horses while he was driving them across the Kankakee river bridge at Kankakee, Ill., resulting, as is claimed, in injuries to appellee. There was a verdict and judgment for appellee for $400, from which this appeal is taken.\nThe declaration contained two counts, one charging negligence on part of appellant in violating an ordinance of Kankakee City, which it averred provided that appellant must stop its cars when it met a team that was frightened by their appearance and wait until the team got by, and that appellant\u2019s servants saw appellee\u2019s team approaching and neglected to stop their car, and carelessly and negligently and knowingly ran down near the appellee\u2019s horses and frightened them, causing them to run away and injuring appellee, by throwing him out of his wagon. Second count charged this duty on appellant but did not plead the ordinance.\nThe cause was tried by a jury, and it appeared from the evidence of appellee that he was a farmer residing near Kankakee City, and on the 15th of April, 1893, went with his team and wagon to the city to get groceries and arrived there about four o\u2019clock in the afternoon; that when he got to the river bridge over which the cars of appellant passed, he saw one of its cars approaching, he coining from the south; that he motioned and hallooed to the defendant\u2019s servants to stop the car; that he first saw the car about four rods from the bridge right by the mill, and when he first saw it he stopped a little and drove a little further on and then came the cars about four rods from the bridge; that the car was about two rods from him when he hallooed to it; that the cars were right beside him when his horses ran away, and three of his ribs were broken, and he was ruptured and was in bed four months. The men on front of the car did not look at him when he hallooed.\nIt does not appear very clear from appellee\u2019s evidence whether he was on the bridge before he saw the appellant\u2019s car or not. The motorman, Patrick Powers, testified that he, in charge of the car, met appellee on the bridge with his team; that his car was not quite a span on the bridge when appellee first drove on, and when he saw appellee he was standing in his wagon, lines in one hand, that is, he had the lines doubled in his hand and had the ends of the lines in the other hand, and was continually whipping his horses, and so he stopped the car. The conductor rang the bell for him to go on and he ran the car slowly until about sixty feet of appellee, and then stopped and said to him, \u201c Hold on and don\u2019t whip the horses and I will help you by;\u201d but the horses were going so fast he dare not go in front of them, and just as he came to the front end of the car his team made a lunge forward, and the front wheels of his wagon struck one of the standards of the bridge and they jerked and broke the wagon tongue; it dropped down and the horses ran away. The horses trotted all the time till they came within 100 feet of him and then they commenced to gallop. Witness did not hear appellee call to him to stop. All he said was \u201c Whoa \u201d and \u201c Get up.\u201d The bridge is about 1,000 feet long The team was coming toward the car in a fast trot and looked frightened and that was the reason he stopped. Powers\u2019 testimony was corroborated by that of the conductor of the car, Ezra Dachen.\nIt is apparent from the evidence that appellee and the servants of appellant went on the bridge before either saw that the other was on.\nThe bridge is 1,000 feet long, and appellee says he called to the motorman when he was two rods away. The appellant had the same right on the street and bridge with its cars as the appellee, and was only bound to use ordinary care with reference to his safety. The appellant would not be responsible for any injuries resulting to appellee from the team being frightened at sight of the cars being operated on the streets, unless it failed to use reasonable care to avoid damages after discovering that there was danger by the fright of teams or otherwise.\nIt is laid down by Rorer on Railroads, Yol. 1, p. 705, that \u201c a railroad along a street is entitled to the nse of the street equally with teams, and if horses are frightened in ordinary operation, the railroad company is not liable.\u201d Macomber v. Nichols, 34 Mich. 214. We can not see what appellant\u2019s servants could have done that they did not, after they saw appellee\u2019s team was frightened and there was danger. They stopped the cars before the team reached them, sixty feet before, and the cause of the accident was that the horses shied when they came to the cars; they were frightened at the car while it was standing still.\nThe court ought not to have admitted the ordinance under the pleading. The declaration described it as requiring the appellant, in case its servants saw the horses of appellee approaching, and they appeared frightened, \u201c to stop its cars and allow his horses to pass.\u201d The ordinance only required appellant\u2019s motorman \u201c to keep a vigilant watch for carriages, etc., etc., and govern himself accordingly to avoid damages.\u201d In any given case, under this ordinance, the motorman was only required to use vigilance in discovering danger, and to use reasonable care to avoid it. It was not a matter of law that it was negligence per se if the cars were not stopped. What reasonable effort the motorman should make to avoid causing damages after seeing danger, was a question of fact for the jury. There might be circumstances where to stop the car would be to cause damage instead of to avoid it.\nThe appellee\u2019s first instruction is erroneous in telling the jury, that if appellant, \u201c by watching out, could have seen plaintiff with his team, and that the team was frightened, then it was its duty to have done what it could to avoid accident.\u201d\nIt will be seen that this instruction was too strict in its requirements. When the appellant\u2019s servants saw that appellee\u2019s team was frightened, it was only their duty to use reasonable care to avoid injury. And this they were required by law to do. In fulfilling this obligation they would be governed by all the surroundings and circumstances of the case.\nThe sixth instruction, is also erroneous in telling the jury' that when appellant\u2019s servants \u201c saw the plaintiff\u2019s horses were frightened, then it was the duty of the defendant company to have stopped its car and allowed plaintiff to get out of danger.\u201d This instruction was erroneous in telling the jury what particular act appellant\u2019s servants must do in order to be within the exercise of ordinary care. That was a matter of fact for the jury, and not the court, to determine. The jury, if left to decide what ordinary care on part of appellant required under the circumstances to prevent or avoid accident, may have found that it was not necessary for appellant to stop its car any sooner than it did, or that it was not necessary to stop it at all. The court, bjr this instruction, invaded the province of the jury. Then there is an intimation in the instruction that appellant\u2019s motorman did not stop the car, when the evidence shows that he stopped it within sixty feet of appellee\u2019s horses. The jury, if left to determine the question, may have deemed this ordinary care on the part of appellant to avoid the accident and injury to appellee. Hor is the above error excused by the court erring in the opposite direction by giving appellant\u2019s instructions seven and twelve; nor is it cured because other proper instructions were given for appellant.\nFor the above errors pointed out, the judgment of the court below is reversed and the cause remanded.", "type": "majority", "author": "Mr. Presiding Justice Lacey" } ], "attorneys": [ "Wheeler & Hunter, attorneys for appellant.", "H. L. Richardson and. E. E. Day, attorneys for appellee." ], "corrections": "", "head_matter": "Kankakee Electric Railway Co. v. John Lade.\n1. Street Cars\u2014Frightening Horses.\u2014A street car company has the same right with its cars to a street that an individual with a team has, and is only bound to use ordinary care with reference to the latter\u2019s safety. It is not responsible for injuries resulting from the team being frightened at the sight of the cars, unless the company fails to use reasonable care to avoid damages after discovering the danger.\n2. Railroad Companies\u2014 Use of Streets.\u2014A railroad company with a track along a street is entitled to the use of the street equally with teams, and if horses are frightened at the cars in then ordinary operation, the company is not liable.\n3. Variance\u2014Pleadings and Proof.\u2014Under a declaration describing an ordinance as requiring the servants of a street car company, in case they saw \u201c horses approaching and they appeared frightened, to stop its cars and allow them to pass,\u201d an ordinance only requiring such servants to keep a vigilant watch for carriages, etc., etc., and govern themselves accordingly to avoid damages, is not admissible.\n4. Instructions\u2014Street Oars and Frightened Horses.\u2014In an action for injuries sustained by the frightening of horses by electric cars, it is erroneous to instruct the jury that if the company \u201c by watching out could have seen the plaintiff with his team, and that the team was frightened, then it was its* duty to have done what it could to avoid accident,\u201d as being too strict in its requirements.\n5. Same\u2014Not to State What Acts Constitute an Exercise of Ordinary Care.\u2014In an action for damages sustained by the frightening of horses by electric cars, it is error to instruct the jury that when the company\u2019s servants saw the horses it was their duty to have stopped the car and allowed the horses to get out of danger, because it tells the jury what particular acts the company\u2019s servants must do in order to be within the exercise of ordinary care.\nMemorandum.\u2014Action for damages, frightening horses. In the Circuit Court of Kankakee County; the Hon. Charles R. Starr, Judge, presiding. Declaration in case and plea of not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the May term, 1894.\nReversed and remanded.\nOpinion filed December 13, 1894.\nWheeler & Hunter, attorneys for appellant.\nH. L. Richardson and. E. E. Day, attorneys for appellee." }, "file_name": "0454-01", "first_page_order": 450, "last_page_order": 454 }