delivered the opinion of the court.
Plaintiff, as administrator of the estate of George McElroy, deceased, brought an action against the defendant to recover damages claimed on account of the negligent operation of one of its street cars as a result of which it struck McElroy and fatally injured him. There was a verdict and judgment in plaintiff’s favor for $5,000.
The record discloses that on Sunday evening, June 27, 1920, about 9:45 (daylight saving time), as the deceased and his wife were walking west across Crawford avenue, a north and south street in Chicago, in which the defendant operates a double line of street cars, at the north crosswalk of Thomas street, an east and west street, they were both struck by a southbound street car on which there was no headlight burning. The deceased was thrown to the west side of the street car and his wife to the east side and he died the nest day as a result of the injuries received. The evidence shows that the street ear was being operated on Crawford avenue from Bryn Mawr avenue on the north to 31st street on the south side of Chicago, Bryn Mawr avenue being about 5% miles north of Thomas street where the accident occurred; that the motorman and conductor discovered that the headlight would not bum just prior to starting south from Bryn Mawr avenue. The accident occurred just after dark. Crawford avenue at the place in question is occupied for business and resident purposes and there is considerable travel in that street.
Four witnesses testified as to the rate of speed the car was traveling at the time of the accident. For the plaintiff, Morris testified that the car was traveling from 25 to 30 miles per hour; Botheroyd 30 to 35 miles and Harder 30 to 35 miles. For the defendant, the motorman, Calderwood, testified that he was traveling from 10 to 15 miles per hour, but that he might have been going faster. A witness for the defendant testified that the maximum speed of the type of car in question is 21 miles per hour. All of the witnesses testified that the headlight was not burning. Some that the bell was not rung or that they did not hear it. The evidence further tends to show that just prior to the accident, three women, one of them carrying a baby in her arms, walked across Crawford avenue from the northwest comer of Thomas street, in a southeasterly direction towards the southeast corner of the intersection. Two of them testified on the trial to the effect that before entering the roadway they looked to ascertain if any street car was approaching, but saw none; that when they had about reached the east or northbound street car track, the southbound street car stmck the deceased and his wife. There is other evidence in the record that tends to show just prior to the accident two automobiles overtook and passed the street car in question, one of them going to the east of the street car and the other to the west. Witnesses, including the motorman, testified that before the deceased and his wife started to cross Crawford avenue they looked to the north and to the south. The evidence further tended to show that although the brakes were in good order and applied promptly, the car ran a considerable distance after striking the deceased. Some placed the distance at about 175 feet. The motorman stated that he ran about a car’s length after the collision.
The defendant concedes that there was considerable evidence tending to show that there was negligence in the operation of the street car, that it was driven at an excessive rate of speed without ringing a bell, and there is no dispute but that the headlight was not burning, but the defendant contends that the evidence shows that the deceased was guilty of contributory negligence, as a matter of law and as a matter of fact, and, in support of this, it is said that the street car was brightly illuminated by many lights on the inside of the car, which showed through in front of the car onto the street; that the car was mailing a great noise, since it was traveling at a rapid rate of speed, and that if the deceased had been paying any attention he would have seen the car and avoided injury; that if he did not look, he was guilty of negligence; that if he did look and see the car, he was guilty of negligence in endeavoring to pass in front of it. The motorman testified that the last stop- he made before the collision was at Division street, one block north; that as he approached Thomas street, he noticed three ladies walking east across Crawford avenue at the intersection; that he slowed down for them and was ringing his bell; that he then noticed the deceased and wife; that three ladies passed ahead of the car about 75 feet; that when he was about 40 to 50 feet north of Thomas street, the deceased and his wife stopped in the northbound street car track and he thought they were going to let the car pass and he then applied the power all the way; that they were looking at him; that when he was about 15 feet from them, they darted in front of the car; that he endeavored to stop the car at once, but was unable to do so. There is evidence tending to show that the intersection was well lighted; other evidence tends to show that it was rather dark at that place. Upon a careful consideration of all the evidence in the record, we are clearly of the opinion that all reasonable minds would not reach the conclusion that the deceased was guilty of negligence and, in these circumstances, it was a proper case for the jury and they having found that the deceased was not guilty of contributory negligence, we cannot, in view of the evidence in the record, say that their finding in this respect is against the manifest weight of the evidence.
The declaration was in five counts; the first charged general negligence in the operation of the car; the second alleged high and dangerous rate of speed; the third, failure to sound a hell; the fourth alleged a violation of the city ordinance which required every street car while being operated at night to be equipped with a brightly lighted headlight; the fifth alleged negligence in operating the car without a sufficient headlight. The defendant filed a plea of general issue. On the trial of the case the plaintiff was given leave to amend the fourth count by striking out the quotation there made from the city ordinance which required street cars to be numbered, have signs upon them and to have a brightly lighted headlight when operated in the nighttime and inserted in lieu thereof other provisions, but which were somewhat different, but not materially so. To this the defendant filed a plea, of general issue and of the statute of limitations (so-called). A demurrer was sustained to the latter plea and an order was entered that the general issue filed to the declaration stand as the defendant’s plea to the amended fourth count. The defendant contends that the demurrer to its plea should have been overruled. On the other hand, the plaintiff’s position is that the point was waived because after the demurrer was sustained the defendant pleaded over by having the order entered above mentioned. We think there is no merit in this latter contention, because it is clear that defendant was standing on its so-called plea of the statute of limitations. And, moreover, the order was unnecessary because the defendant had already filed the general issue to the count as amended. Nor do we think there is any merit in the defendant’s contention. The provision of the ordinance set up in the fourth count is the same in substance as that set up in that count as amended, and so far as requiring a headlight at nighttime, the provision i.s identical. In each it was provided that when a street car was being operated at nighttime it “should be equipped with a brightly lighted headlight.” The demurrer was properly sustained to this plea.
1. When the ordinance was offered in evidence, the defendant objected, the objection was overruled and the ordinance admitted and it is now contended that the admission of this ordinance was error for four reasons: (a) Because the ordinance pleaded in the original declaration had been amended and superseded by the ordinance offered in evidence before the injury occurred. Since the amended ordinance retained the same requirement in reference to the headlight, it was but a continuation of the former ordinance and the objection was, therefore, properly overruled, (b) The second and chief objection to the ordinance is that it was void because “unreasonable in its requirement of brightly lighted headlights on street cars.” (c) That the ordinance was of no force or effect at the time of the injury because it was passed December 28, 1914, when the police power of cities in reference to the regulation of public utilities, such as street cars, had been withdrawn from cities and other municipalities and vested in the Public Utilities Commission. (d) That the ordinance is void because it is indefinite and uncertain in requiring a brightly lighted headlight.
(b) In support of this contention is is argued that brightly lighted headlights on street cars cannot be used with safety on the streets of Chicago; that there is just as much danger from glaring headlights on street cars as from glaring headlights on automobiles; that the statute expressly limits the use of such lights on automobiles, and that the ordinance is so unreasonable as to render it void. We think the contention is unsound, because the defendant has placed a wrong construction on the requirements of the ordinance and contrary to the construction placed upon it by the defendant company and the City of Chicago for many years; because the testimony of the conductor of the street ear in question who testified on behalf of the defendant shows that the headlight on the car in question was the ordinary headlight used on all the street cars; that it consisted of a round globe about 8 or 9 inches in diameter; that it did not throw much light out for the motorman; that the light was not at all like the bright heádlights on automobiles. With this evidence in the record, it is apparent that the construction placed on the ordinance by the defendant and the city was not that bright lights were required, but that it only required a rather dim light.
■ (c) It is argued especially in the reply brief that upon the enactment of the Public Utilities Act in 1913, the cities’ power of regulation over public utilities, which includes street cars, was withdrawn and that all ordinances passed by all municipalities in this respect were ipso facto annulled and rendered void; and that thereafter cities and other municipalities were without power to pass any further ordinances in this respect or to enforce those that were already in existence. And in support of this contention: City of Chicago v. O’Connell, 278 Ill. 591; State Public Utilities Commission v. City of Quincy, 290 Ill. 360; Chicago Rys. Co. v. City of Chicago, 292 Ill. 190; Seattle Elec. Co. v. City of Seattle, 78 Wash. 203; City of Manitowoc v. Manitowoc & N. Traction Co., 145 Wis. 13; Stephens v. Chicago, B. & Q. R. Co., 303 Ill. 49, and other cases are cited.
In the O’Connell case, where there was a conflict between the provisions of a city ordinance passed by the city council in 1907 for the regulation of street cars and an order made by the Public Utilities Commission of Illinois in 1915 covering the same subject-matter, the question arose whether the provisions of the order entered by the commission prevailed over those in the city ordinance. And it was held that in so far as there was a conflict, the order of the commission prevailed. The order there complained of, among other things, required the street car companies of Chicago to display signs on ears; to operate ears at certain intervals. And it was held that since the enactment of the Public Utilities Law in 1913, these regulatory powers which had heretofore been exercised by cities and other municipalities were transferred to the Public Utilities Commission. The court there said (p. 606): “The order requires only such things to be done by the railway companies as will, in the judgment of the commission, improve the service furnished the public, and in so far as the order conflicts with the ordinances concerning such matters, the order of the commission supersedes and sets aside the provisions of the ordinances.”
In the City of Quincy case an order was entered by the Public Utilities Commission making effective advanced rates for street car service, the rates being higher than those that had been previously fixed by a city ordinance, and it was held that the order of the commission was binding. To the same effect was the holding in the Chicago Rys. Co., supra.
In the City of Seattle case, after the enactment of a Public Utilities Law by the legislature of that State, somewhat similar to our own, the city council of Seattle passed an ordinance for the purpose of regulating the operation of street cars, and it was held that although the commission had taken no steps in the matter, yet the city council was without power to legislate on the subject after the enactment of the law, because the law conferred the power on the commission.
In the City of Manitowoc case, it was held that the enactment of an Utilities Act by the legislature of Wisconsin did not supersede a contract between the City of Manitowoc and an Interurban Railway Company.
In the Stephens case, it was held that the power of the highway commissioners to compel a railroad to remove obstructions to a highway was transferred to the Utility Commission.
From the foregoing, it is clear that the point under consideration was not involved in any of the authorities cited. In the instant case, the ordinance requiring street cars when operated in the nighttime to carry a brightly lighted headlight was in force and effect since 1911, it having been passed by the city council at that time, which was prior to the enactment of the Public Utilities Act by the legislature of this State. And we certainly would not be warranted in holding that by the mere passage of the Utilities Act, ordinances of the character in question were ipso facto annulled, unless there was a clear positive provision in that act to that effect, and no such provision has been pointed out. If counsel’s contention were sustained, all ordinances of all municipalities in the State touching the manner of the operation of public utilities would be cut up by the roots upon the going into effect of the law. It is dear that such was not the intention of the legislature, because it is apparent that after the law went into effect, a considerable period of time must necessarily elapse before proper and necessary orders could be passed by the Utility Commission.
In passing on a somewhat similar proposition, the Appellate Court of this State, speaking by Mr. Justice - Graves, in the case of Central Illinois Public Service Co. v. City of Sullivan, 215 Ill. App. 494, said (p. 499): “Neither is it material, if true, that the City of Sullivan had passed an ordinance which conflicts with the order of the State Public Utilities Commission. In so far as the order of the Public Utilities Commission conflicts with city ordinances concerning matters over which the commission have jurisdiction, the order of the commission supersedes and sets aside the provisions of the ordinances. City of Chicago v. O’Connell, 278 Ill. 591-606.”
A final contention on this phase of the case is made that even if the ordinance should be deemed in force and effect until the commission took positive action inconsistent therewith, the burden of proof was on the plaintiff to show that the commission had taken no such action. We cannot agree with this contention. The ordinance having been offered in evidence, and nothing appearing to the contrary, it is presumed to be valid. And when it was received in evidence, we think this was all that plaintiff was required to prove in this respect.
(d) What we have said in paragraph (b) is sufficient to show that this contention cannot be maintained.
2. The defendant further contends that the judgement is wrong and should be reversed because the court in its instructions ignored the fact that no recovery could be had if the deceased widow was guilty of contributory negligence because she was one of the beneficiaries. On December 6, 1923, the Supreme Court of this State definitely settled the law to the effect that in an action brought under chapter 70 of the Revised Statutes for the wrongful death of a person, no recovery can be had if any of the beneficiaries were guilty of contributory negligence. Hazel v. Hoopeston-Danville Motor Bus Co., 310 Ill. 38. Prior to that time, it had been generally understood that the law in such kind of an action barred recovery only where the deceased was a minor and whose death was caused in part by an adult beneficiary. Deming v. Chicago Rys. Co., 222 Ill. App. 645, the only recent intimations to the contrary appearing in the case of Klassens v. Chicago City Ry. Co., 230 Ill. App. 615.
In the instant case recovery would be barred, if the negligence of the widow materially contributed to the accident which resulted in her husband’s death, provided the case was tried upon that theory in the trial court. It is elementary that one is not permitted to try a case upon one theory in the trial court and, when defeated, shift their position in a court of review.
In the instant case, it is clear that counsel for both parties tried the case on the theory that recovery might he had if the deceased were free from negligence and there was no intimation that recovery would he barred if the widow was guilty of any negligence. Such being the theory upon which the case was tried in the lower court, the defendant is not in a position to urge successfully its contention made here for the first time. The record discloses that counsel for the defendant in his examination of a juror on his voir dire said: “This man (the deceased) was crossing the street in the nighttime up there and he claims, or it is claimed in his behalf, that while he was exercising due care for his own safety, he was run upon by the negligence of the motorman of the car and that he was Irilled. The burden of proof is on them to prove they are entitled to a verdict; they must prove both propositions, that he was exercising the care that the law requires of him, and that while he was so doing, he was hurt and killed through the fault of the street car company. Of course, if they prove that by the preponderance of the evidence, they are entitled to a verdict for something. The amount will be put to you later.” And the court gave at the request of the defendant an instruction “that plaintiff could not recover unless it proves by the preponderance or greater weight of the evidence that the accident in question occurred under such circumstances as would, if death had not ensued, have entitled the deceased to maintain an action and recover damages for whatever injuries he sustained. And the court, further instructs you that before the deceased could recover against the defendant * * * had he lived, it would be incumbent upon him to prove by preponderance or greater weight of evidence, not only that the defendant was guilty of the negligence charged * # * but it would also be incumbent upon him to prove that he himself did not by any careless or negligent act cause or contribute to bring about the injury or death complained of.” From this instruction we think it appears that it was the intention and understanding of the defendant’s counsel that it included all the necessary facts which must he proven hy the plaintiff to warrant a recovery. It contained nothing with reference to the widow’s conduct and upon reading of the record it is clear that on the trial the question of the conduct of the ■widow in the instant case was by no one considered important. In these circumstances, the contention of the defendant cannot be maintained.
3. A further point made is that a new trial should be awarded because of the bias and prejudice of a juror. That on the examination of one of the men who sat on the jury, touching his qualifications, he testified that he never had any experience and knew of no reason why he could not be a fair juror to both sides; that he never had any trouble with street car companies in Chicago and had no prejudice against them. That these answers were made on April 17, 1922. The verdict was rendered in the instant case on the day following. And on the 19th of April, this juror after the return of the verdict in the instant case was being examined as a prospective juror in another street car case, wherein he stated, in response to questions put to him, that he had no prejudice against a man driving an automobile, but being an owner of an automobile he might have some prejudice against the street car company, because of some experience he had had with motormen; that he had never had any suits against them, but had had some close escapes from them; that on account of his past experience in driving his automobile he would be prejudiced against street car companies, and that he did not believe he could give such company a fair trial. This latter matter was brought to the attention of the trial judge on the motion for a new trial by way of an affidavit. We think the court properly denied the motion for a new trial. Such affidavit as was offered here could not be used to impeach the verdict. Sanitary Dist. of Chicago v, Cullerton, 147 Ill. 385,
4. A further point is made that there was prejudicial error committed by counsel for plaintiff in the cross-examinatfon of defendant’s motorman. The motorman testified that at the time of the trial he was working for the Northwestern railroad, and that he had worked as motorman but three months for the street car company. He was then asked by plaintiff how long he had worked for the Northwestern. This was objected to. The witness stated he had been working for that company since he quit working for the street car company. He was then asked when he quit working for the street car company and he answered June 30,1920. Thereupon a juror asked “what was that date?” and the witness again answered June 30, 1920. Counsel argues this was highly improper, because it was apparent that counsel for plaintiff was endeavoring to get before the jury the fact that he quit work for the street car company three days after the accident, which would indicate that he had been discharged by the street car company for his negligence in causing McElroy’s death. The error, if any, is not material here because the evidence of the defendant’s negligence is clear. In fact it is substantially conceded by defendant’s counsel. In these circumstances the error, if any, was harmless.
5. A further complaint is that the court erred in giving instructions one and two at the request of plaintiff. And it is said, that these instructions authorized a recovery if the jury found from the evidence that the defendant was guilty as charged in any count of the declaration; that the fourth count of the declaration was fatally defective; and that even if the jury believed that every allegation of it had been proved, they would not find enough to make out actionable negligence. This count alleged a violation of the ordinance which required that street cars be equipped with brightly lighted headlights when operated in the nighttime. And it is argued that the ordinance is void for the several reasons above mentioned, which reasons we have held untenable. And further that the instruction warranted the jury in finding for the defendant because there was no headlight, although they might believe the car was sufficiently lighted otherwise. We think this argument is unsound. It was averred in the count that the deceased was fatally injured because of the failure of the defendant to comply with the ordinance which required that the street car be equipped with a brightly lighted headlight. Nor is the contention tenable that the instruction told the jury, in effect, that a violation of the ordinance was negligence per se. We think this is a misapprehension. The count alleged the failure of the defendant to have the street car equipped with a brightly lighted headlight, and averred that defendant so carelessly operated the street car without such headlight that it struck the deceased who was in the exercise of due care. We think the contention is unsound and that there was no prejudicial error in giving the two instructions.
The judgment of the circuit court of Cook county is affirmed.
Affirmed.
Taylor, P. J., concurs.