Chicago City Railway Co. v. Cooney , 96 Ill. App. 176 ( 1901 )

Mr. Justice Sears

delivered the opinion of the court.

Aside from matters considered and disposed of (favorably to appellee) upon the appeal in the suit of Ellen Cooney, there is but one question which requires determination upon this appeal, viz.: Did the evidence warrant a recovery by appellee for expenditures for medical services ? We are of opinion that it did not. There is evidence as to the amount actually expended by appellee in this behalf, but there is no evidence whatever that such expenditures were the ordinary and reasonable cost of such medical services as were procured. Appellant preserved its exception to the introduction of the testimony. The court, by the ninth instruction, permitted the jury to include these items in their assessment of the damages, without any limitation as to the reasonable cost of the same. The amounts expended by appellee for these purposes aggregate $300. It is impossible to determine from the record how much thereof was a reasonable expense. It is also impossible to determine that the jury did not allow the $300 which appellee had paid out for medical services as a part of their award of damages.

The error in the giving of the ninth instruction, by which the jury were permitted to include elements of damages for which there was no support in the evidence, can not be safely said not to have been prejudicial to appellant. Therefore the judgment can not be permitted to stand in its entirety. If the appellee shall remit from the judgment the amount of $300 within ten days, the judgment will be affirmed. Otherwise it will be reversed and' the cause will be remanded. In either évent appellant will recover its costs. Reversed and remanded July 2,1901.

Mb. Justice Wihdes:

Notwithstanding the errors mentioned in the majority opinion, I think the evidence, aside from that relating to appellee’s expenses, sustains the amount of the judgment; that substantial justice is done, and that the judgment should be affirmed.