(129 III. 152) VILLAGE OF CARTERVILLE v. COOK. (Supreme Court of Illinois. June 17, 1889.) CONCURRENT NEGLIGENCE. A village is liable for injuries caused to a person by falling off from a sidewalk maintained at an unsafe height without guards, though the accident was directly caused by the negligent act of a third person in pushing the person off the sidewalk. Appeal from appellate court, Fourth district. Action by Samuel Cook, an infant, etc., against the village of Carterville for damages for personal injuries. Verdict and judgment for plaintiff, and defendant appeals. James M. Washburn and Joseph W. Hartwell, for appellant. B. W. Pope and Geo. W. Young, for appellee. SCHOLFIELD, J. The evidence given upon the trial tended to prove that the plaintiff, a boy of some 15 years of age, while in the observance of ordinary care for his own safety, passing along a much-used public sidewalk of the defendant, was, by reason of the inadvertent or negligent shoving by one boy of another boy against him, jostled or pushed from the sidewalk at a point where it was elevated some six feet above the ground, and was unprotected by railing or other guard, and thereby seriously injured in one of his limbs. ment so near to it as to make traveling on it | There was at the time of the accident no statdangerous, is liable for injuries received by ute which prescribed the manner in which any person who is lawfully using the way with this opening should be constructed or guarddue care. Mellen v. Morrill, 126 Mass. 545; ed, for St. 1885, c. 374, § 108, does not apply Oliver v. Worcester, 102 Mass. 489. But to elevator openings through the wall of a abutters on a public way have not control of building into a street, and St. 1888, c. 367, § the way, nor do travelers use a public way 3, had not then been passed. By the terms by invitation of the abutters. In this com- of the report the verdict is to stand. monwealth the obligation of a city or town to put up guards against pitfalls which are so near to a highway as to make it unsafe for travelers is similar to the obligation which it seems is imposed upon abutters by the English law. We are not aware that it has ever been decided here that excavations made by the owner of land outside the limits of a highway, but so near as to make it unsafe for travelers, constitute a public nuisance, for creating or maintaining which the landowner may be punished, or that in assessing damages for land taken for a highway any allowance is made to the land-owner for the loss of any right to use the land not taken, in the same manner as if a highway had not been laid out. But if it be assumed that, when a building abuts upon a street, it is for the authorities of the city or town to determine whether the entrances into the building from the street are so constructed that they may be permitted to remain, and if it be also assumed that when entrances are permitted, which are constructed so as to be closed when not in use by doors or some other barrier, the occupier of the building is liable in damages to travelers upon the street, if the doors are negligently left open or the barrier left down, whereby the street becomes unsafe and the travelers are injured, we yet are of opinion that the facts stated in the report do not show, or tend to show, negli gence on the part of the defendant. It does not appear that the opening was not constructed so as to be closed with doors, or a proper barrier, when the elevator was not in use. The stone lintel was about three inches above the sidewalk. The opening was but five or six feet wide, and necessarily nearly at a right angle with the line of the sidewalk, and the width of the wall of the building was about 18 inches. It was impossible that any traveler using due care in the day-time should mistake the opening for a continuation of the sidewalk. The only danger was that a person on the sidewalk might be pushed into the opening as he might be pushed against the wall of the building, or against or through a window, or against a door. The elevator, at the time of the accident, was in use for carrying up the iron castings which were being unloaded from the wagon which had been backed up against the curbstone of the sidewalk. The accident that happened was one that could not reasonably have been anticipated, unless the horse was vicious, or there was negligence in managing him; and it does not appear that the horse belonged to the defendants, or that the persons who were unloading the castings, or were in control of the horse, were servants of the defendants. The objection urged against the ruling in refusing and modifying instructions presents the question whether, conceding the negligence of the defendant in omitting to reasonably guard the sidewalk at the point where plaintiff was injured, by railing or otherwise, the concurring negligence of a third party, over whom it had no control, in producing the injury, releases it from liability. The supreme court of Massachusetts have held in Rowell v. City of Lowell, 7 Gray, 103; Kidder v. Dunstable, Id. 104; and Shepherd v. Inhabitants, 4 Allen, 113,—that it does. These cases, however, seem to rest, to some extent, upon the phraseology of the Massachusetts statute, which is less comprehensive in this class of cases than is the ruling in this court. Chicago v. Keefe, 114 Ill. 222, 2 N. E. Rep. 267. At all events, we are committed to a different line of ruling upon this question. In Joliet v. Verley, 35 Ill. 58; Bloomington v. Bay, 42 Ill. 503; City of Lacon v. Page, 48 Ill. 500,-we held that if a person, while observing due care for his personal safety, be injured by the combined result of an accident and the negligence of a city or village, and the injury would not have been sustained but for such negligence, yet, although the acci dent be the primary cause of the injury, if it | Is one which common prudence and sagacity could not have foreseen and provided against, the negligent city or village will be liable for the injury. that no bell was rung as required by municipal ordinance, that the accident was caused by these care, is sufficient to justify a refusal to give a peracts, and that the deceased exercised ordinary emptory instruction in favor of defendant. 2. In such an action, the facts that the deceased 3. There is no legal presumption by virtue of which the deceased must be deemed to have known that the train was approaching, if he could have discovered it by either looking or listening. 4. The refusal to instruct the jury that if both parties were guilty of gross negligence plaintiff could not recover is not prejudicial error, where the duty of the deceased to use ordinary care is fully stated in the instructions given. It is not perceived how, upon principle, the neither looked nor listened for the train, and that if he had looked or listened attentively he coul intervention of the negligent act of a third have avoided the accident, do not constitute suci person, over whom neither the plaintiff nor conclusive proof of contributory negligence as to the defendant has any control, can be differ-bar a recovery, where the jury find that the deceased exercised reasonable care. ent in its effect or consequence in such case from the intervention therein of an accident having a like effect. The former no more than the latter breaks the causal connection of the negligence of the city or village with the injury. The injured party can no more anticipate and guard against the one than the other, and the elements which constitute the negligence of the city or village must be precisely the same in each case; and we have accordingly held that when a party is injured by the concurring negligence of two different parties, each and both are liable, and they may be sued jointly or separately. Railway Co. v. Shacklet, 105 Ill. 364; Transit Co. v. Shacklet, 119 111. 232, 10 N. E. Rep. 896. And this is abundantly sustained by decided cases elsewhere. Railroad Co. v. Mahoney, 57 Pa. St. 187; Railroad Co. v. Terry, 8 Ohio St., 570; Smith v. Railroad Co. 46 N. J. Law, 7; Webster v. Railroad Co., 38 N. Y. 260; Patt. Ry. Accident Law, §§ 39, 95, and cases cited in notes appended to each section. See, also, Shear. & R. Neg. (2d $ Ed.) §§ 10, 27, 46, 401. And we have applied the same rule in a suit for negligence against a municipal corporation. Peoria v. Simpson, 110 Ill. 301. The Massachusetts rule seems to be applied, also, in Maine, (Moulton v. Sanford, 51 Me. 127; Wellcome trict. v. Leeds, Id. 313;) but it seems to be else- W. C. Goudy and W. B. Keep, for appelwhere repudiated, when the question has lant. M. L. Knight and Joseph S. Kennard, been considered. See Hunt v. Pownal, 9 Vt. Jr., for appellee. 411, and authorities cited supra. The instructions, as given, fairly presented the law of the case to the jury, and concurring, as we do, fully with the views expressed in the opinion of the appellate court by Mr. Justice GREEN, (Village of Carterville v. Cook,)1 we deem it unnecessary to comment further upon the rulings below. The judgment is aflirmed. BAKER, J., having tried this case in the circuit court, took no part in its consideration here. (129 Ill. 132) CHICAGO & N. W. Ry. Co. v. DUNLEAVY.2 1. In an action against a railroad company for injuries causing death, evidence tending to show that the train which caused the accident was running at the time through the thickly settled portion of a city at the rate of 30 to 35 miles per hour, 1Not reported. bar. 5. Even in the absence of statutory and municipal regulation, a railroad company has no right to run its freight trains through a populous city, right to be, at any rate of speed consistent with even in places where the general public has no the safety of its employés and the property on the train, but such rate of speed must be regulated by a due regard for the safety of the public. 6. Under 3 Starr & C. St. Ill. p. 435, which provides that the jury must, on request of either party, be required "to find specially on any material question of fact stated to them in writing," it is proper for the court in such an action to modify the question, "What precaution did the deceased take to inform himself of the approach of the train?" so as to make it read, "Was the deceased exercising reasonable care for his own safety at the time he was killed?" the question as originally propounded referring to an evidentiary, and not an ultimate, fact. 7. That the jury fail to give categorical answers to some of the questions propounded is harmless error, when it appears that whatever answers they gave to such questions could not have been inconsistent with their general verdict. Appeal from appellate court, First dis BAILEY, J. This was an action on the case, brought by Annie Dunleavy, administratrix of the estate of John Dunleavy, deceased, against the Chicago & Northwestern Railway Company, to recover damages under the statute for the death of the plaintiff's intestate. The declaration consisted of nine counts, to the fifth, sixth, and seventh of which a demurrer was sustained. To the remaining counts the defendant pleaded not guilty, and, on trial before the court and a jury, the issues were found for the plaintiff, and her damages assessed at $1,800, and for that sum and costs the court, after denying the defendant's motion for a new trial, gave judgment for the plaintiff. Said judgment was affirmed by the appellate court on appeal, and by a further appeal the record is now brought to this court. The first count of the declaration alleges that the defendant, on the 26th day of July, 1886, by its servants, ran one of its locomotive engines, with a train of freight-cars thereto attached, from east to west, over one Reported by Louis Boisot, Jr., of the Chicago of its tracks under a viaduct at Blue Island avenue, in the city of Chicago; that the plaintiff's intestate was then and there in the | which, if true, would have tended to supemploy of said city, cleaning and painting port a verdict for the plaintiff. the iron columns, etc., of said viaduct; and Upon the question of the speed of the train that "the said train was, by and through the at the time Dunleavy was killed, the witnesses negligence, carelessness, and improper con- for the plaintiff testified that it was moving duct of the said defendant through its serv- very fast; some of them fixing the speed at ants in the premises, run at a high and from 30 to 35 miles per hour. Such speed, dangerous rate of speed," and that while at the place where the accident happened, in being so run it was driven against and upon a thickly settled portion of a great city, was said Dunleavy, whereby he was instantly of itself a fact for the jury to consider as killed. The second count alleges that the de- tending to show that the defendant was fendant, through its servants, "so carelessly, guilty of negligence, and was sufficient to improperly, and unskillfully managed and justify an inference to that effect. The city conducted said engine and train that the said ordinance requiring a bell to be rung continJohn Dunleavy was forcibly knocked down ually while the train was in motion at the by said engine and train," and thrown under place in question was proved, and the testithe wheels of the train, and instantly killed. mony of a number of the plaintiff's witnesses The third count sets up an ordinance of said tended to show that no bell was rung or othcity requiring the bell of each locomotive er warning given until after Dunleavy was engine to be rung continually while running struck. This evidence, tending, as it did, to within the city, and alleging that the defend-show a breach of municipal ordinance, was ant's servants in charge of said train failed to also a sufficient basis for an inference by the comply with the ordinance, and that in consequence of such failure said Dunleavy was killed. The fourth count is substantially like the second. The eighth count alleges that the engineer and fireman could, by looking, have seen Dunleavy standing at his work, and by sounding a whistle have given him notice of the approach of a train, but that they failed to sound the whistle, and that in consequence of such failure said Dunleavy was killed. The ninth count alleges substantially the same act of negligence as the eighth, though in different language. Each count alleges in proper form that Dunleavy, at the time he was killed, was in the exercise of due care. At the close of the trial the counsel for the defendant asked the court to instruct the jury that the evidence in the case was insufficient to sustain a verdict for the plaintiff, and that their verdict should therefore be for the defendant. This instruction the court refused to give, and such refusal is assigned for error. A prayer for an instruction of this character is in the nature of a demurrer to the evidence, and is equivalent to an admission upon the record of every fact and every conclusion in favor of the opposite party which the evidence conduces to prove; in other words, every fact which the jury might have inferred from it in favor of such opposite party. Such instruction should not, therefore, be given, except where there is a substantial failure of evidence tending to prove the plaintiff's cause of action, or to prove some material fact necessary to establish it. The instruction asked was based upon the theory that there was a substantial failure of evidence tending to prove the negligence charged against the defendant. In considering the propriety of said instruction, we have nothing to do with any question as to the preponderance of the evidence or the credibility of the witnesses, or the force to be given to the evidence having a tendency merely to impeach their veracity. The only question is whether any evidence was given jury of negligence. The circumstances under which the plaintiff's intestate was killed, and which need not here be stated in detail, clearly tended to establish a causal relation between such acts of negligence and the collision which resulted in his death. There was also evidence, partly direct and partly circumstantial, tending to show the exercise of ordinary care on the part of the deceased. Manifestly, then, the case was not one where a demurrer to the evidence could have been sustained, and the court, therefore, properly refused to instruct the jury to find a verdict for the defendant. The next questions to be considered are those which relate to the special findings of the jury. Upon this branch of the case it is urged-First, that the court improperly refused to submit certain questions of fact to the jury; second, that certain of the questions of fact submitted were not properly answered; and, third, that the special findings of fact are inconsistent with the general verdict. The statute under which special findings may be required is but recent, and the rules of practice thereby established have never before been presented to this court for its consideration. We must therefore look mainly to the statute itself for our guide in determining the propositions now raised. The statute is as follows: "Section 1. That in all trials by jury, in civil proceedings in this state in courts of record, the jury may render, in their discretion, either a general or a special verdict; and, in any case in which they render a general verdict, they may be required by the court, and must be so required on request of any party to the action, to find specially upon any material question or questions of fact which shall be stated to them in writing, which questions of fact shall be submitted by the party requesting the same to the adverse party before the commencement of the argument to the jury. Sec. 2. Submitting or refusing to submit a question of fact to the jury, when requested by a party as provided by the first section This statute, so far as it relates to special verdicts, is merely declaratory of the common law. It has been competent for juries at common law, since the statute 13 Edw. I, to find a general verdict, or, when they have any doubt as to the law, to find a special verdict, and refer the law arising thereon to the decision of the court. By a special verdict, the jury, instead of finding for either party, find and state all the facts at issue, and conclude conditionally that if, upon the whole matter thus found, the court should be of the opinion that the plaintiff has a good cause of action, they find for the plaintiff, and assess his damages; if otherwise, then for the defendant. 2 Tidd, Pr. (Amer. Ed.) 897, and hereof, may be excepted to and be reviewed | forms of verdict are provided for by the same on appeal or writ of error as a ruling on a statute, and they must therefore be construed question of law. Sec. 3. When the special as being in pari materia. In giving confinding of fact is inconsistent with the gen- struction to the statute, the first, and perhaps eral verdict, the former shall control the lat- the most important, question relates to the ter, and the court may render judgment ac- scope and meaning of the phrase, “material cordingly." 3 Starr & C. St. 435. question or questions of fact." May such questions relate to mere evidentiary facts, or should they be restricted to those ultimate facts upon which the rights of the parties directly depend? Evidently the latter. Not only does this conclusion follow from analogy to the rules relating to special verdicts, but it arises from the very nature of the case. It would clearly be of no avail to require the jury to find mere matters of evidence, because, after being found, they would in no way aid the court in determining what judgment to render. Doubtless a probative fact from which the ultimate fact necessarily results would be material, for there the court could infer such ultimate fact as a matter of law. But where the probative fact is merely prima facie evidence of the fact to be proved, the proper deductions to be drawn from the probative fact presents a question of fact, and not of law, requiring further action by the jury, and it cannot, therefore, be made the basis of any action by the court. Requiring the jury to find such probative fact is merely requiring them to find the evidence, and not the facts, and results in nothing which can be of the slightest assistance to the parties or the court in arriving at the proper determination of the suit. note. The rules of law, as to special verdicts and their requisites, have long been settled, both in this country and in England. Thus, it is held that they should find facts, and not the mere evidence of facts, so as to leave nothing for the court to determine except questions of law. Vincent v. Morrison, Breese, 227; Brown v. Ralston, 4 Rand. (Va.) 504; Seward v. Jackson, 8 Cow. 406; Henderson v. Allens, 1 Hen. & M. 235; Hill v. Covell, 1 N. Y. 522; Langley v. Warner, 3 N. Y. 327; Kinsley v. Coyle, 58 Pa. St. 461; Thompson v. Farr, 1 Speer, 93; Leach v. Church, 10 Ohio St. 149; La Frombois v. Jackson, 8 Cow. 589. To authorize a judgment upon a special verdict, all the facts essential to the right of the party in whose favor the judgment is to be rendered must be found by the jury. Finding sufficient evidence, prima facie, to establish such facts, is not sufficient. Blake v. Davis, 20 Ohio, 231; Hambleton v. Dempsey, Id. 168. If probative facts are found from which the court can declare that the ultimate facts necessarily result, the finding is sufficient. Water Co. v. Richardson, 72 Cal. 598, 14 Pac. Rep. 379; Coveny v. Hale, 49 Cal. 552. A special verdict cannot be aided by intendment, and therefore any fact not ascertained by it will be presumed not to exist. Lee v. Campbell, 4 Port. (Ala.) 198; Tunnell v. Watson, 2 Munf. 283; Lawrence v. Beaubien, 2 Bailey, 625. The view we take is strongly fortified by the provision of the third section of the statute, that, when a special finding of fact is inconsistent with the general verdict, the former shall control. This necessarily implies that the fact to be submitted shall be one which, if found, may in its nature be controlling. That can never be the case with a mere evidentiary fact. A fact which merely tends to prove a fact in issue without actually proving it cannot be said to be, in any legal sense, inconsistent with a general verdict, whatever that verdict may be. Such inconsistency can arise only where the fact found is an ultimate fact, or one from which the existence or non-existence of such ultimate fact necessarily follows, and that is never the case with that which is only prima facie evidence of the fact sought to be proved. The common law requires that verdicts shall be the declaration of the unaniIt is manifest, of course, that a special find- mous judgment of the 12 jurors. Upon all ing by a jury upon material questions of fact matters which they are required to find, they submitted to them under the provisions of must be agreed. But it has never been held the statute is not a special verdict, but an es- that they must all reach their conclusions in sentially different proceeding. A special ver- the same way and by the same method of dict cannot be found where there is a general reasoning. To require unanimity, not only in verdict, but the special findings of fact pro- their conclusions, but in the mode by which vided for by the statute can be required only those conclusions are arrived at, would in in case a general verdict is rendered. But, most cases involve an impossibility. To rewhile this is so, much light in relation to spec- quire unanimity, therefore, not only in the ial findings upon questions of fact, and their result, but also in each of the successive office and objects, may be derived from the steps leading to such result, would be pracrules applicable to special verdicts. Both tically destructive of the entire system of v.22N.E.no.2-2 lation to its eleventh and twelfth questions of fact. The first, as prepared by the defendant's counsel, was as follows: "(1) What precaution did the deceased take to inform himself of the approach of the train which caused the injury?" This was modified by the court so as to read as follows: "(1) Was the deceased exercising reasonable care for his own safety at the time he was killed?" The ulti plaintiff to prove, and which the defendant jury trials. To illustrate, suppose a plain- | the questions were submitted as asked. We tiff, trying his suit before 12 jurors, should do not understand that the defendant is now seek to prove a fact alleged in his declaration complaining of the action of the court in reby giving evidence of 12 other facts, each having an independent tendency to prove the fact alleged. The evidence of each probative fact, or the conclusions to be drawn from it, might appeal with peculiar force to the belief or judgment of some one of the jurors, but less so to his fellows. The cumulative effect of all the evidence might be such as to leave no doubt in the mind of any member of the panel as to the truth of the fact al-mate fact which it was incumbent upon the leged, still, if the jury were required to find specially as to each probative fact, no one of the 12 facts would be at all likely to meet with unanimous concurrence of the entire jury. As to each they would be compelled to confess their inability to agree, or, what would be its equivalent, say they did not know or could not tell; which, if we apply the rules governing special verdicts, would be tantamount to a finding that the fact was not proved or did not exist. If such finding If such finding should be required, and should be given the effect of controlling the general verdict, the result would be that under such system of trial general verdicts could but seldom stand. However natural the curiosity parties may have to know the precise course of reasoning by which jurors may arrive at verdicts either for or against them, they have no right, under guise of submitting questions of fact to be found specially by the jury, to require them to give their views upon each item of evidence, and thus practically subject them to a cross-examination as to the entire case. Such practice would subserve no useful purpose, and would only tend to embarrass and obstruct the administration of justice, and Complaint is made to the answers given we may further say that such practice finds by the jury to the fourth and fifth questions. no warrant in our statute. We are referred Those questions were as follows: “(4) Did to one case in another state where, in a suit the deceased look to ascertain if the train in for personal injuries against a railroad com- question was approaching? (5) Did the depany, the defendant was permitted, under a ceased listen to ascertain if said train was apstatute somewhat similar to ours, to put to proaching?" To both of these questions the the jury no less than 136 interrogatories as jury answered: "Don't know." It is perto the facts, covering apparently every possi-haps questionable whether defendant, in orble phase of the evidence.1 The judgment der to avail itself of the objection that no against the railroad company was reversed proper answer was made to these questions, for an erroneous instruction to the jury as to should not have made it at the time the verthe form of their answer to questions where dict was returned, and before the jury were the evidence was not sufficient, but no sug-discharged; for then the jury might have gestion seems to have been made that any portion of the questions put to the jury were improper. Whatever may be the view of such practice taken by the courts of other states, we are unwilling to give our countenance to its adoption here. been required to complete their verdict by making proper answers. Moss v. Priest, 19 Abb. Pr. 314. But, however that may be, it is manifest that the error, if it be one, cannot have been prejudicial to the defendant, unless it can be seen that answers to said questions most favorable to the defendant— which, of course, would have been answers in the negative-would have constituted a finding inconsistent with the general verdict. If, then, we treat said questions as having been answered in the negative, would such answers, either alone or in connection with the answers to the other questions, have con1Railroad Co. v. Cone, 37 Kan. 567, 15 Pac. Rep. with the general verdict? To the second stituted a finding necessarily inconsistent In the present case the defendant's counsel prepared and submitted 15 questions of fact, upon which the court was asked to require the jury to make special findings. Of these the eleventh and twelfth were refused. The first was modified and submitted to the jury in its modified form. The residue of 499. |