Citations
- 55 Ill. App. 600
Full opinion text
Mr. Justice Boggs
delivered the opinion or the Court.
This is an appeal from a judgment in the sum of §4,000, rendered in an action on the case against the appellant company as damages for a personal injury sustained by the appellee while a passenger upon one of appellant’s cars in the city of Springfield. The declaration contained two counts; in the first it is charged that appellee was a passenger on one of appellant’s cars, and that the servants and agents of the appellant willfally, forcibly, violently and negligently pushed another passenger against him in such manner as to forcibly and violently throw him from the car to the ground, while the car was in motion, whereby his left leg was broken, etc. The second charges that the appellant, by its servants and agents, willfully, forcibly, violently and negligently forced and threw the appellee from the car to and upon the ground, whereby his leg was broken, etc. The specific acts of negligence charged in these counts, or one of them, must have been established by the evidence, in order to maintain the judgment. It appeared from the testimony, practically without dispute, that the appellee and his brother-in-law, one Thomas Connolly, boarded a street car on appellant’s line at the corner of Second and Monroe streets, in Springfield, intending to ride to the city limits; both had been indulging in intoxicating liquor, and Connolly was considerably under its influence. They declined to take seats in the car where other passengers, both male and female, were riding, but persisted in standing upon the rear platform. After the car had proceeded but a short distance on its route Connolly became boisterous and disorderly and indulged in profane and obscene language in a loud tone of voice. The conductor rebuked him several times without effect, and at length requested the appellee to induce him to be quiet, which provoked him to á renewed outbreak of profanity and obscenity, whereupon the conductor told appellee that he would remove Connolly from the car at the next stopping place if such misconduct continued. Connolly declared, with an oath, that no conductor could put him off, and continued his disorderly course. When the car reached the next street crossing the conductor laid hold upon Connolly for the purpose of putting him off the car. That Connolly ought to have been removed is undeniable. He resisted, but the conductor pulled him from the car, and the appellee came to the ground with him and had his leg broken. How and why the appellee left or was forced from the car, was the subject of the only substantial conflict in the whole testimony. As to that the appellee testified as follows: “ Smith, the conductor, caught hold of Connolly and began to pull him from the dashboard, and tried to shove him off, and shoved him against me, and shoved both of us off. He and HcGlassen (a passenger), I suppose both of them. They shoved us off and I got my leg broken.” HcGlassen testified that “ the conductor got upon the step of the car, caught hold of Connolly, who was upon the platform, and attempted to pull him off the car; that the appellee drew back his arm to strike the conductor; that he (the witness) caught the appellee to prevent him from hitting the con- • ductor, and pulled him back toward the door of the car; that the appellee broke away from him and caught Connolly or in some way fell off with him.” The conductor (Smith) testified that he got upon the step, seized Connolly and pulled him from the car; that something seemed to be holding Connolly back, and that finally the appellee came to the ground with him. Here we find the testimony of two witnesses in conflict with that of the appellee. The evidence of the two seems to establish the fact to be that the appellee voluntarily engaged in an effort to assist Connolly in maintaining his position on the platform ; that he attempted to assault the conductor in the effort and failing in this because of the intervention of HcGlassen caught hold of Connolly in order to hold him upon the car, and both went off together in the struggle. If such was the true state of the case, no one would contend that either count of the declaration was supported by the proof, or that any right of recovery existed. It may be argued that the testimony of the appellee was accepted by the jury as entitled to more weight than that of the conductor and HcGlassen, and that it sufficiently sustained the plaintiff’s case as stated in the first count, i.