North Chicago City Railway Co. v. Gastka , 1888 Ill. App. LEXIS 585 ( 1888 )

Garnett, P. J.

The court below gave.to the jury the following instruction for the plaintiff, viz.:

4. “ If, under the evidence and instructions of the court, the jury find the defendant guilty, as charged in the plaintiff’s declaration, then, in estimating the plaintiff’s damages, it will be proper for the jury to consider the effect of the injury in future upon the plaintiff, the use of his leg and his ability to attend to his affairs generally in pursuing any ordinary trade or calling, if the evidence shows that these will be affected in the future, and also the bodily pain and suffering he sustained, and all damages, present and future, which from the evidence appear to be the necessary and direct result of the injury complained of.”

Appellant presents two objections to this charge:

(1) That there is no averment in the declaration of permanent injury to appellee, or that he was thereby incapacitated from doing anything in the future that he would have been able to do had the injury not been inflicted.

(2) That the instruction leaves the jury to find damages for the probable effect of the injury, in the future, upon the plaintiff.

A complete answer to the first point is found in City of Chicago v. Sheehan, 113 Ill. 658, where the same supposed defect in the declaration was pointed out. The court held, however, that the absence of an averment of permanent injury was immaterial; that it was enough that the declaration showed the injury received, without describing it in all its seriousness.

As to the second objection, whatever criticism of the instruction might have been accepted as well founded before the decision in C., B. & Q. R. R. v. Warner, 108 Ill. 538, we must now regard it as having no force. The injury of which Warner complained there, was the crushing of his arm, and the instruction now under consideration is a copy of the one approved by the court in that case, substituting only the word a arm ” for the word “ leg.”

Another instruction given for appellee, was:

“ The plaintiff holds the affirmative of the issue, or, what is called the burden of proof rests upon him, the defendant having denied the charges alleged against it in the declaration. The plaintiff must satisfy you by what is called a preponderance of the proof, that the wrong complained of was committed by the servant of the defendant, ■ in manner and form as charged in the declaration. By a preponderance of proof, the court does not mean the largest number of witnesses on a given point; four or five witnesses may testify to a fact, and a single witness may testify to the contrary, but under such circumstances and in such manner and with such an air and appearance of truth and candor as to make it the more satisfactory or convincing to you that the one witness, with the opportunity of knowing the facts testified to, has told the truth of the matter. When you are thus satisfied that the truth lies with a single witness or any other number, you are justified in returning a verdict in accordance therewith. This is what is meant by a preponderance of proof. It is that character or measure of evidence which carries conviction to your minds.”

Appellant’s counsel insist that this was an effort to inform the jury of the various elements necessary to be considered by them in determining the credibility of the witnesses, and the consequent preponderance of the evidence. There is no such attempt at enumeration to be found in the instruction. In effect, the jury are hereby directed to consider all the circumstances under which the several witnesses testified, for the purpose of arriving at a correct conclusion as to their credibility. The appellant, if not satisfied with the general statement of the law, should have asked an instruction designating more specifically the -points which should he treated as the basis of the finding in this respect. A similar instruction, in substance, was approved in Johnson v. Whidden, 32 Me. 230.

Exception is also taken to the clause in the instruction which charges that “the plaintiff must satisfy you by what is called a preponderance of the proof that the wrong complained of was committed by the servant of the defendant, m manner and form as charged, in the declaration.” The declaration contains a full statement of the facts necessary to charge the appellant with liability, and no error is committed in thus referring the jury to that source for information. O. & M. Ry. Co. v. Porter, 92 Ill. 438; Ladd v. Pigott, 114 Ill. 654.

The case presented by either count of the declaration is not based merely upon negligence, but upon great force and violence, in the first and second counts, and in the third upon great force and violence without any warning to appellee. Beferring to either count for the facts necessary to a recovery, the jury could not, as contended for appellant, have found appellant guilty, if its only fault had been the slightest degree of negligjnce. The instruction was as favorable to appellant as the law requires. The conductor of a street car, having implied authority to keep trespassers off the car under his control (Thompson on Carriers of Passengers, 369), still must h-ave a due regard for life and limb, and should be held to a strict accountability for any reckless or wanton abuse of his authority. Bailway Accident Law (Patterson), Sec. 198; Pierce on Bail roads, 330.

At the conclusion of the evidence of appellant, but before it rested its defense, the attorney for appellant informed the court, that appellant had subpoenaed Bohn and Burda as witnesses in the cause; that they had been present in the court house during the trial on the day before, and on the then pres-sent day of the trial; that, because of the order of the court excluding the witnesses from the court room, during the trial, Bohn and Burda had not been in the court room, but had kept outside of it, and in the room of the court house assigned to the witnesses in said cause while waiting to testify, and when they were wanted for examination, they could not be found; and appellant moved the court to give it time to produce such absent witnesses; but the court, after waiting for that purpose for not over fifteen minutes, the witness not appealing, refused to wait longer, and recpiired the appellant to at once proceed with the trial, which was done, without the evidence of such witnesses.

On the motion for a new trial affidavits were read in evidence showing the facts above stated, and the materiality of the evidence which Bohn and Burda would have given, if time had been allowed to secure their attendance. Without passing on any other question presented by this point in the motion for a new trial, we must rest contented with the observation that none of the affidavits state whether or not the witnesses absented themselves by consent of appellant, and the failure to make that fact appear was good ground for disregarding the point.

Inspection of the evidence fails to convince us that the jury was influenced by passion or prejudice in arriving at their verdict, or that the finding is manifestly against the weight of the evidence. The judgment is affirmed.

Judgment affirmed.

Gaby, J., took no part in the decision of this case.