McMahon v. Owsley (260 Ill. 43, 1913)

Mr. Justice Vickers

delivered the opinion of the court:

Richard McMahon recovered a judgment in the superior court of Cook county for $6250 against Louis S-. Owsley, receiver of the Suburban Railroad Company, for personal injury. The Appellate Court for the First District affirmed the judgment below, and the record has been brought to this court by certiorari.

At the close of defendant in error’s evidence, and again at the close of all the.evidence, plaintiff in error requested the court to direct a verdict in his favor, which the court refused, and the action of the court in this regard is relied upon as the principal error for a reversal.

The amended declaration upon which the case was tried contained four counts. The first, second and fourth counts are substantially the same, and charge that plaintiff in error permitted Andrew Johnson to discharge the duties of motorman and that said Johnson was incompetent, unskillful and inexperienced in that line of work, arid that through the incompetent and careless operation of a car by the said Johnson the defendant in error was thrown from the car and injured. The third count of the amended declaration alleged that it was the duty of plaintiff in error to establish and maintain a light as a signal or warning at the intersection of Fifty-second avenue and Twenty-second street, and that a light previously maintained at said place had been negligently removed, and that in consequence of the darkness the accident happened which caused the injury. There is no serious contention on behalf of defendant in error that the judgment below can be sustained under the third count of the amended declaration. The right of recovery, if any exists, must rest upon the case stated in the other three counts of the declaration.

The material facts established by the testimony are as follows: Defendant in error was a conductor on an electric railroad owned by the Suburban Railroad Company but at the time of the accident it was being operated by plaintiff in error as receiver. The Chicago terminus of the railroad line was at the corner of Forty-eighth avenue and Harrison street. On the evening of September i, 1907, defendant in error was a conductor on a car which ran from LaGrange to the Chicago terminus. The car barns were located at the corner of Harlem avenue and Twenty-second street. These barns were on the line" over which the car in charge of defendant in error passed in its trip from La-Grange to the Chicago end of the line. The car in charge of defendant in error reached the car bams about midnight. Here the regular motorman left the car and went to his home. A man by the name of'Whitsel was in charge of the car bams during the day. It was his duty to give instructions in regard to the operation of cars from the barns and he was a general foreman over all the men whose cars ran into the barns. Whitsel went off duty at six o’clock in the evening and Andrew Johnson took his place and was in charge of the