dissenting:
I do not concur in the views expressed in this opinion, nor in the conclusion reached by it. The streets of the cities in this State belong to the people. No street car company has any superior right to their use or to passage along them. The humblest teamster has as much right to travel thereon, or any part thereof, as the cars óf a street railway company. The doctrine, that such a company is .“invested with a superior right of way” along such streets is subversive of the rights of the people in and to their own highways. Moreover, under the repeated decisions of this court, appellant is estopped from complaining of the refusal of the instruction announcing the superior right so claimed, because it asked and procured to be given instruction No. 5, which announced a contrary doctrine. The Appellate Court correctly disposes of the case in the following words:
“It appears from the evidence that appellee, whose business was that of a fish peddler, had, on the day of his injury, gone w^h one Fred Doehn in a light spring wagon or buggy from his home in the city of Chicago to a park near the city limits, at Dunning, to put up some signs to advertise a picnic, and "that they returned in the evening, about 9 or 9:50, toward the city by way of Milwaukee avenue, along which the tracks of .appellant run. When appellee and his companion reached a point on the avenue between two hundred or three hundred yards from Fortieth street, appellee drove his wagon onto the car tracks from tlie side of the street where he had prior to that time been driving, in order to avoid numerous bicycles that were going along the side of the avenue where he was driving. Doehn also says that this part of the avenue was not fit to drive in—was full of holes. The night was dark and the street lighted but poorly by kerosene lamps about a block apart. The horse driven by appellee was going at a trot. Appellee says ‘he was trotting pretty fast.’ At the south-west corner of Milwaukee avenue and Fortieth street there was a saloon which was lighted up, and the lights shone upon the street in front of it. As appellee and his companion neared Fortieth street, appellee, who was driving, started to turn his wagon out of the car track,—Doehn says at his suggestion, in order to water the horse; appellee says, because he saw the car coming behind him, though he also says that Doehn had just before suggested that there was a watering trough at that place and they should water the horse there. Before appellee got the wagon clear of the track, appellant’s car, coming up from behind, collided with it while the rear wheels were either still upon the car tracks or very near to them. The seat of the wagon was thrown down into the body of the wagon, and appellee and his companion were by force of the collision thrown upon the street and appellee was thus injured.
“There is a conflict in the evidence as to the rate of speed at which the car was running; as to whether or not the bell or gong was rung in time to warn appellee of its approach; as to whether appellee exercised due care for his own safety, and as to whether there was a light upon his wagon or buggy, as required by the city ordinance then in force.
“The evidence on behalf of appellee tends to show that the car was running at a rapid rate of speed—at its full speed—and that it went fifty to seventy-five feet before it was stopped after the collision. The evidence on behalf of appellant tends to show that the usual speed of the car was ten miles per hour. That was the schedule time, as testified to by the motórman, and he admits that when he first saw the wagon it was forty or fifty feet ahead of him and he was running at the rate of seven or eight miles an hour. There was a headlight on the car, which could be seen at a distance of three-thousand feet away, and which must necessarily have thrown a light to a considerable distance in front of the car, and thus apprised the motorman of the proximity of the wagon in front of him in time to have avoided the accident, had he been exercising ordinary care in the discharge of his duties.
“We are inclined to the view, from a full consideration of the evidence, that the bell or gong was rung for some distance before the car reached the wagon, but there is evidence tending to show the bell was not in good condition, or cracked, so as not to give a full and clear sound.
“We cannot say, from all the evidence, that the jury were not justified from it in reaching the conclusion that the appellant was negligent in running at too rapid a rate of speed, considering all the circumstances;' also in not giving a sufficient and timely warning to appellee of the approach of the car; and that the motorman did not exercise ordinary care to avoid the collision.
“On the question of appellee’s care to avoid the collision, we think the verdict of the jury was justified. The evidence of appellee and his companion shows that they both looked and listened, from time to time, as they drove along the avenue, and failed to see or hear the car as it approached from behind them until it was very close upon them, and that appellee at once proceeded to leave the track with his wagon as soon as he discovered the approach of the car. It appears that appellee and his companion were not unacquainted with the locality and the ordinary speed at which appellant’s cars were run, but they had the right, under the circumstances shown, to drive upon the track, and to assume that if a car approached them from behind the motorman would exercise ordinary care, and would discover the presence of the wagon upon the track by means of the headlight on the car and the lights along the street, and either slacken his speed or stop the car so as to avoid collision, or give them warning in time for them to leave the track and thus avoid any danger.
“We are therefore of opinion that the court did not err in refusing to instruct a verdict for appellant.
“Complaint is made of the giving of all the instructions for appellee,, five in number, all of which are set out in the statement preceding the opinion, except the fifth. As to the first of said instructions, it is said that there was error because it referred the jury to the declaration to ascertain the acts of negligence, and that it appears from the record that at no time during the trial was the declaration shown or read to the jury or its contents explained to them. No doubt the jury should have been informed as to what the declaration charged, in order to make this instruction intelligible to tliem; but appellant is precluded from making this objection to the instruction, because the same fault appears in its instructions 12 and 13, which were given by the court. It is also said that under this instruction the jury were justified, even if they knew the allegations of the declaration, in finding that the appellant’s duty to appellee was to exercise the highest care. If the contention is well founded and the instruction not strictly accurate for this reason, it is fully cured, in our opinion, by appellant’s fifth instruction given, which tells the jury that appellant’s duty was only that of ordinary care to persons using the street. Other objections made to this instruction are not, in our opinion, well founded, one of which is, that it fails to state that the burden was upon appellee to prove ordinary care. This last objection, we think, is cured by appellant’s second instruction, which tells the jury that before the plaintiff can recover he must establish his case by a preponderance of the evidence.
“Complaint .is made of the third instruction for appellee, for the same reason, as to burden of proof and the jury being referred to the declaration, as in the first instruction. The same answers as above made to the objections to the first instruction in these respects, apply. It is also said that this instruction is erroneous because the jury are not required to be guided by the evidence on the questions of care and negligence. The instruction does state that the jury are to consider all the facts and circumstances surrounding the entire action, and in accordance with the law as laid down in the instructions. By appellant’s first instruction the jury are told that in arriving at their verdict they are to be governed solely by the law and the evidence, and by the seventh of appellant’s instructions given, they are told they should determine from the evidence, and that alone, what the facts of the case really are. These instructions, taken together, we think fully informed the jury as to their duty in this respect.
“The same objection is made to the appellee’s fourth instruction as last above mentioned with regard to the third. The same answer applies as to the third. It is also said that it allows the jury to assess damages for mental pain and suffering, whereas there is no averment in the declaration to justify it; also, that the jury are allowed to consider inconvenience to appellee by reason of the injury, and that the instruction assumes that appellee had suffered pain, loss of time and injuries as the direct result of the accident. The declaration avers that the appellee suffered a severe mental shock, which we think is sufficient to cover mental pain and suffering. The inconvenience which the jury were allowed to consider by this instruction was such as he might suffer as the direct and inevitable result of the accident. No authority is cited to show that this was not a proper element of damages, and we are of opinion that the instruction was not improper in this regard. The claim that the instruction assumes that appellee had suffered pain, loss of time and injuries as the direct result of the accident is not reversible error in this case. The evidence abundantly establishes these matters, which are uncontroverted, and that being so, while it is technical error it is not cause for reversal under the proof in this case.
“We have considered the other objections to instructions given and refused and think they present no cause for a reversal, and do not regard the criticisms of sufficient importance to justify special mention thereof. * * *
“At the time the rebuttal evidence was offered, and at no time thereafter during the course of the trial, does it appear that the surprise of appellant’s counsel was made known to the court, nor was there any motion for a continuance of the cause made on that ground. We think there was no error under the circumstances shown on the hearing of the motion for a new trial in overruling it. (Waidner v. Pauly, 141 Ill. 442; Ogden v. Danz, 22 Ill. App. 544; Dueber Watch Case Manf. Co. v. Lapp, 35 id. 372).
“We are of opinion that the evidence in this respect was of little or no importance in determining any of the questions at issue. The ordinance does not provide where on the wagon the light or lights required should be displayed, and, for all that appears from this record, even if appellee did violate the ordinance, as claimed, there is nothing to show, or which tends to show, that such violation in any way contributed to the injury or excused appellant for its negligence. '
“The claim that the damages are excessive is not, in our opinion, tenable. That appellee was quite seriously injured and prevented from carrying on his usual business for several months we think is established by a preponderance of the evidence. His injuries at the time of the trial, which was about two years and nine months after the accident, still caused him pain, and it was shown by his attending physician that portions of his lungs had become solid and had ceased to do their work; that a slight inflammation of the lung tissue would cause that portion of the lung to be destroyed for use at that time, and that in the opinion of the physician there was no cure for that; that it was a serious matter and would always affect him. It is true there was evidence to some extent conflicting with this, but we are not prepared to say that the amount of the verdict was not fully justified.
“Being of opinion that there is no reversible error in. the record, the judgment is affirmed.”