Calumet Electric St. Ry. Co. v. Jennings , 83 Ill. App. 612 ( 1899 )

Mr. Justice Windes

delivered the opinion of the court.

It is claimed that plaintiff failed to prove her case as made by the declaration; that the damages are excessive, and that plaintiff’s counsel in his closing speech made such an appeal to the prejudices and passions of the jury that the judgment can not stand.

We are of opinion that the statement of counsel for the company at the close of plaintiff’s evidence indicates that he did not expect to contest the charge of negligence made against the -company, which is claimed by the brief of defendant in error to have been the fact, and that there was an understanding between counsel, on the trial, that defendant’s liability was conceded, and the only question to be considered was the extent of the plaintiff’s injuries.

That there was such an understanding between counsel,, to the knowledge of the court, would tend to explain the court’s remark when plaintiff was asked as to the speed of the car, viz.: “ What difference does it make about the speed ? ” and the further fact that her counsel did not ask that the question be answered.

We are also of opinion-that the evidence of plaintiff, as set out in the statement preceding this opinion, is sufficient to make prima facie proof that the car was being run at a high and dangerous rate of speed while passing round a curve, and as one of defendant’s witnesses says, a reverse curve and down grade. She says the car was turning the curve and she was thrown to the other side of the car from where she was sitting, and when she tried to pick up her baby she was thrown back again, and on making another attempt to get the baby, she was thrown on her face, and was picked up by a passenger. She also said the car went on the bank.

Besides, plaintiff was a passenger, in the exercise of ordinary care, and the car left the track while she was riding upon it. This is not disputed by the company, and makes a prima facie case for plaintiff, and placed upon defendant the burden of rebutting all the specific negligence charged ■ in the declaration. N. C. St. R. R. Co. v. Cotton, 140 Ill 486; Cramblett v. C. & N. W. Ry. Co., 82 Ill. App. 542.

There was no attempt by the company to show the speed "of the car, nor to explain the accident, except that a brick was on the tracks. . We are of opinion that did not overcome plaintiff’s prima facie case. We. have stated the evidence relating to the extent of plaintiff’s injuries, the pain she suffered, the effect upon her ability to work and to use her arm, and as to the probability of the permanency of such injuries. It is true there is some conflict in the evidence, but we can not say, after full consideration of all the evidence, that the damages are so excessive as to justify us in disturbing the judgment for that reason.

Some of the remarks of plaintiff’s counsel to the jury were improper, but when objection was made, counsel was admonished by the court, and we are not prepared to hold that the language of counsel was so intemperate that it did in fact arouse the passions and prejudices of the jury to the extent of vitiating their verdict, though it was large. We are inclined to the opinion that the remittitur was such as to justify the learned trial judge in entering, as he did, judgment on the verdict for $2,500, and that this judgment does substantial justice in the case. It is therefore affirmed.