Citations
- 138 Ill. App. 569
Full opinion text
Mr. Justice Freeman
delivered the opinion of the court.
The cause of the accident was a collision between the electric car upon which appellee was a passenger and a truck wagon loaded with flour. It is contended in behalf of appellant that the car was running at a moderate and safe rate of speed, but that the truck wagon “cut into its path when the car was so close at hand that it was impossible for the motorman to stop the car and prevent the accident,” although he made every effort so to do. The accident occurred about eight o ’clock in the morning of the twenty-ninth day of June. The car was an open car with an aisle down its center and seats for two persons on each side of the aisle. Appellee was occupying a seat next to the aisle. The portion of the same seat next to the side of the car was occupied by a woman. The car had turned off from Twelfth street to go east to Fifth avenue, and was going down the decline from Twelfth street toward Taylor street. A truck drawn by two horses and heavily loaded was proceeding slowly down Taylor street in a direction leading across the street car tracks on Fifth avenue, in front of the advancing car. The truck crossed the westward of the two tracks and had so far crossed the east track before the car reached it that only the rear end of the wagon was struck. There is evidence tending to show that the car was proceeding down the decline from Twelfth street to where Taylor street crosses Fifth avenue at a rapid rate of speed. The motorman testifies that he first saw the wagon crossing the track about fifty feet away and he then made every effort to stop the car, which he says could be done on such rails in about sixty-five feet. He had delayed too long, however, to prevent the collision. We think the evidence sustains the verdict of the jury as to appellant’s negligent operation of the car. Certainly the motorman could reasonably anticipate, if he had been looking ahead in the exercise of due care, that there was probable danger of collision with a wagon which was proceeding in an easterly direction at the intersection of Fifth avenue with a cross street with an evident intention to cross in front of his car over the railway tracks, such intention having been 'manifested so long before his car came within fifty feet of it that the wagon had actually crossed the westward of the two tracks on Fifth avenue and was in the act of crossing the. other track upon which the car was approaching when the motorman says he first saw it. It was clearly his duty to have his car under such control under these circumstances as to enable him to avoid a collision. So far as we are able to discover, there is nothing in the evidence tending to support appellant’s theory that the “truck wagon cut into” the path of the car when the latter “was so close at hand that it was impossible for the motorman to stop the car and prevent the accident.” The situation of the wagon when struck by the car, struck at its rear end, strongly tends to refute such contention. A heavily loaded wagon going slowly, as the evidence tends to show this was, could scarcely have gotten so nearly over the tracks before being hit by the rapidly moving-car if it had suddenly “cut into” the way of the car, as appellant’s counsel suggest. There is evidence tending to show that the car was moving down hill at a high rate of speed when approaching the place of accident. There is evidence to the effect that in the effort to stop the car when the collision was imminent, the brake was applied with great and apparently unusual force, indicating- a rapid rate of speed at the time, which it was then too late tu check in time to avoid the collision.
It is urged, however, that appellee was injured by reason