dissenting:
I cannot concur in this decision.
The car was traveling west upon Fullerton avenue, and the accident occurred when the car reached the crossing of Fullerton avenue by Oakley avenue, the latter running north and south. The plaintiff, who was injured, was riding her bicycle at the time of the accident, going west in the same direction in which the car was going. At the time the accident occurred, she was on the north side of the car, between the car and the sidewalk, upon Fullerton avenue, which was a public street. There are circumstances going to show that the conductor was guilty of gross negligence, which resulted in the injury to the appellee. But, if he was not guilty of gross negligence, the evidence tends to show that he was guilty of negligence, and that appellee was in the exercise of due care for her own safety. This being so, the judgment of the superior court of Cook county in her favor, awarding her §1000.00 damages, and the judgment of the Appellate Court, affirming the judgment of the superior court, are a final determination of the facts, so far as this court is concerned.
When the car, going west, reached Oakley avenue, the conductor, who was upon the front platform of the car, jumped off the car into the street at a distance of from two to five feet from the car. There is as much evidence, tending to show that the distance, to which he jumped from the car into the street, was four or five feet, as that it was a less number of feet. The car at the time was full of passengers. His object in jumping from the car to the street wTas to catch the rear platform of the car, as it should come up to him while he was standing in the street. It makes no difference whether, when the car should come up to him, he was going to help a passenger alight or not; his real object in jumping into the street was to jump upon the car at the rear, when the rear should come up to where he was. The conductor himself says in his testimony: “Every conductor has a different way of working his car. If I am on the front end of the car, in order to save time, I will always jump back, and catch the back as it comes up.” One of the witnesses says that the conductor was collecting fares, and that she saw him get off the car many times, “because there were many passengers.” Is it correct to say that the conductor had a right to be upon the street under the circumstances here stated? The street car company appropriates to its use the middle of the street between the rails of its track, and, in addition, such portion of the street as is under the sides of its cars, where they project over the rails. The streets belong to the people. They are public highways, upon which every citizen has a right to travel. The street car companies have no right to use any more of the public street than is thus occupied by their tracks and the projecting sides of their cars. If the doctrine of the majority opinion is to prevail, then the street car companies have a right to occupy, in addition to the portion of the street thus named, an additional portion for the transaction of their business." When a conductor jumps from the platform of a car four or five feet into the street on the side of the car for the purpose of standing there, and getting on the car when the rear of the car reaches him, then he is using the street to that extent for the business of the company. He has no right to do that. If it is necessary for him to go from the front to the rear of the car, he should go upon the car, either through the car, or by way of the aisle in the middle of the car, or on the foot-board on the side of the car, whether he goes there for the purpose of seeing that a passenger alights properly or not. He has no right thus to appropriate a part of the public street, outside of that occupied by the car tracks and the cars themselves.
But if it should be conceded that he has such right, it would be his duty so to dismount from the car, as not to injure persons passing along the public street. The testimony tends to show that this young lady was riding upon her bicycle about half way between the side of the car amf the sidewalk. That is to say, about in the center between the north side of the car and the north side of the street running west. The evidence tends to show that the conductor knew that she was following the car, or riding near the side of the car, as she had been doing for some time, her mother and aunt being upon the car while she was riding upon her bicycle. The testimony shows that she passed the car several times. The motorman saw her riding upon her bicycle, and several of the passengers testified that they saw her riding there. When he jumped from the car, his back was turned towards her while she was riding her bicycle. His face was directed to the west. In addition to this, the testimony shows that he was engaged in conversation with the motorman just before he jumped from the car. His conduct in thus jumping from the car into the public street to a distance of four or five feet, knowing that the appellee was riding upon her bicycle, and without directing his look in the direction in which she was riding, shows a great degree of negligence. At almost the instant, at which he thus jumped from the car, she ran into him, and was thrown down, and suffered the injury, for which this suit is brought. If he had any right thus to jump from his car into the street, it was his duty to look arid see that the public street was not occupied by travelers, and that he would not collide with any of such passing travelers; but the evidence tends to show that he took no pains, nor exercised any care, to look to see what there was in the street, or what was passing along the street. As a result, the collision with the bicycle was inevitable. The evidence leaves it doubtful whether the car had actually stopped, when he jumped off, or not. He, himself, is unable to say in his testimony whether the car had actually stopped, or not. Thus, there is evidence tending to show that the conductor, the servant of the appellant company, was guilty of negligence in causing the injury. The evidence also tends to show that appellee was in the exercise of due care; she was on the public street; she had a right to ride upon the street on her bicycle. She had a right to ride in the space between the moving car and the north side of the street. When the accident occurred, she was in the exercise of her rights. She could not know whether the car was going to stop at the crossing, or not. It is true, that these cars .stop at the further side of the crossing to let passengers, on and off. But they do not so stop, unless some passenger is going to alight, or board the car. The conductor knows, or is supposed to know, whether anyone is going to alight or board the car. A person, traveling on the street, upon the side of the car, or in the rear of the car, is not bound to take notice that the car will actually stop at the crossing, even though such person knows that there is a rule or ordinance, requiring the car to stop at the farther side of the crossing. Therefore, it cannot be said that it was the duty of the plaintiff, she knowing that the car was about to stop, to wait for, and guard against striking passengers, who were entering or leaving the car, or the conductor, who alighted for the purpose of assisting persons to leave or enter the car. Here, there was no question of striking a passenger. The person, with whom the bicycle collided, was the conductor of the car, and not a passenger. It is the conductor’s duty to stop the car, in orderThat every person, who desires to alight or board the car, may do so. The question whether appellee was in the exercise of due care or not, was, under all the circumstances, a question to be determined by the jury; and is it not invading the province of the jury, to say that “the evidence showed she was guilty of negligence in having placed herself in the position, in which she found herself at the time of the collision?”
The instruction, given for the appellee, which is criticised in the opinion of the majority, cannot be said to contain serious error. The doctrine, announced in Chicago, Milwaukee and St. Paul Railway Co. v. Halsey, 133 Ill. 248, has no application here, as there was no evidence tending to show that appellee walked into a danger, which the observance of due care would have enabled her to avoid. Moreover, the appellant asked, and the court gave, several instructions, which were the same, in effect, as the instruction so given for the appellee. By the ninth instruction, given for the appellant, the jury were told that they must find by a preponderance of the evidence, “that the plaintiff was not at the time of the accident guilty of any failure to exercise ordinary care for her own safety, proximately contributing to her own injury.” By instruction 10, given for the appellant, the jury were instructed as follows: “If the jury believe from the evidence that the plaintiff failed to exercise ordinary care for her own safety, which failure, if any, proximately helped in any way to bring about the accident, which resulted in the injuries herein complained of, then they should return a verdict of not guilty.” By instruction 15 given for the appellant, the jury were told that “if, after such consideration of all the evidence,” etc., “you are unable to say that the plaintiff has proved by a preponderance of the evidence that the defendant was guilty of the negligence, alleged in the plaintiff’s declaration, and that the plaintiff was exercising ordinary care for her own safety, then the jury should find the defendant not guilty.” The jury were also told by the fifth instruction given for the appellee that, if they believed from all the evidence, “that the injuries complained of were caused by the negligence or carelessness of the servant of the defendant, the North Chicago Street Railway Company, in the course of his employment as such servant, as charged in the declaration, and without any fault on the part of the plaintiff, which contributed to the injury complained of, then the defendant is liable in this action.” In view of these instructions, it cannot be said that the appellant was in any way injured by the giving of the instruction, which is said to be erroneous.
A careful examination of the testimony, will show that it was conflicting as to the distance of the conductor from the car when the collision occurred; as to the distance from the car the appellee was riding on the street; as to the fact whether or not any passenger alighted from the rear of the car; as to whether the car had actually stopped when the collision occurred; as to whether the conductor jumped from the car while it was moving.
The evidence shows that appellee’s arm was broken, and that her injuries are permanent and serious. She was studying music at the time of her injury, and the proof is that thereafter she was unable to use her arm so as tó play the piano. The damages awarded her were moderate.