Chicago City Railway Co. v. Ratner ( 1907 )

Mr. Presiding Justice Brown

delivered the opinion of the court.

The first question to be decided, according to the argument of the appellant, is whether the trial court properly held that the Statute of Limitations was not a bar to this action.

It is a little difficult to determine what exact ruling of the court is challenged by the assertion that this plea is good and the replication thereto is bad, .for that assertion was nevpr brought to an express issue for the court to pass on so far as appears from the record before us.

The court refused to strike the replication from the files, but whether this motion was considered as a substitute for a demurrer to the replication, or as a demand for an inspection of the record by the court and a decision thereon, or whether it was a mere attack upon the method attempted of raising the issue, we do not know.

We think that plaintiff had the option, properly enough, of pursuing the pleading by such a replication as he filed— Gibbs v. Crane Elevator Co., 180 Ill., 191—or by demurring. C. & N. W. Ry. Co. v. Gillison, 113 Ill., 264.

At all events, if the defendant had demurred to the replication, the question would have been then brought to an issue for and decision by the court.

As, however, the evidence all tended to show an injury to the plaintiff on May 15, 1903, and the trial judge had before him the record, which showed the amended declaration not to have been filed until March 6, 1906, which was more than two years thereafter, we may assume that when he refused to take the case from the jury at the close of the plaintiff’s evidence, he decided that the amended declaration stated no new cause of action and no different cause of action from that set forth in the original declaration, and in consequence that the statute did not bar the action. On that assumption, we think he ruled correctly.

The original declaration • did indeed say that the Chicago City Eailway so carelessly “propelled” its car that a collision occurred, and the amended declaration says that the company so carelessly “conducted and managed” its car that there was a collision. But we are not impressed with the strength of the argument by which it is urged that the words “conducting and managing,” being more comprehensive than “propelling,” a new cause of action is set up by them. Eor do we agree with counsel that the original declaration, taken together, fails to show what the car collided with.

We do not think that we can make it, by discussion, clearer than does a consecutive reading of the declarations, that if the original declaration was bad, it was because it was a defective statement of the good cause of action set forth in the amended declaration.

Passing to the merits of the case, we cannot see how it can reasonably be said that the finding of the jury that the defendant was liable was so manifestly against the weight of the evidence that we should disturb it for that reason. It is unnecessary for us to go into the evidence in any detail. The plaintiff’s own testimony, the testimony of McTigue, a fellow passenger, and of William Haack, a bystander, certainly tend to establish negligence in running "the car too fast and without sufficient attention to what might come from the east at the comer of Thirtieth Street. We fail to see the inherent improbability in it that counsel for appellant would point out, or that there is anything in the testimony offered for the defendant which so demonstrates the bla’melessness of the motorman for the accident as to exonerate the appellant. There was at least a question for the jury under proper instructions.

Of the eighteen instructions, sixteen of them were given at the request of the defendant, and as a series and taken together they certainly laid down the law fully and favorably for it.

The allegation of negligence in the management of the car was a general one in this case. It was not necessary to make it more specific. Counsel cite Chicago Union Traction Co. v. Mee, 218 Ill., 9, to show that proof that plaintiff was a passenger when the collision occurred did not throw the burden o£ explanation on the carrier, according to the general rule of evidence in a suit for a personal injury to a passenger by a railroad accident. Careful analysis of the case might show, we think, that it was not intended to say that if the company “had run their car against the wagon before the wagon-left the track” (page 16), the burden of showing that they were guilty of no negligence in doing it would not be upon them, but only that as the company introduced evidence tending to show that the wagon after it. left the track backed up against the car, the burden of proving that this, or a similar tortious or negligent act of a stranger, was not the sole cause of the accident, remained with the plaintiff.

• But however this may be, the jury were not instructed on any theory concerning the presumption or burden of proof of which, under any construction of the Mee case, appellant can rightfully complain.

We do not think that in connection with the other instructions in the cause, any reasonable man would have concluded from the first instruction that it meant anything more than that the company was bound to the exercise of “the highest degree of care consistent with the practical operation of the road” in the conduct and management of its car, carelessness in which is the gist of the declaration.

As to the second instruction, which is an abstract proposition of law entirely correct, the objection is made that it is misleading and erroneous as applied to the facts of this case, because it omits the elements of reasonableness and practicability in the care that must be exercised.

Were this an instruction that directed a verdict, or an instruction which was the sole one given in the cause, there might be point to the objection. As it is, there is none. The “2” might well be omitted and the sentence considered as the concluding paragraph of instruction (“1”). It could be so considered without violence to the sense.

In connection with the several full, fair and favorable instructions given at the request of the defendant on the subject of the nature of the care required from the company in this particular case, the second instruction could have misled no one.

It is said that improper remarks were made by the court and counsel, which may have influenced the jury. There were remarks by counsel in argument which should not have been made, and so the trial judge held. But they were promptly rebuked, and we do not think they amounted to reversible error. It is only in flagrant cases of impropriety in argument that such drastic action as reversal is necessary. We do not think this such a case.

We see no reason for criticising the remark of the judge which is complained of. The construction given to it by counsel for appellant is forced. It was nothing but a colloquial method of expressing his opinion that he ought not to take the case from the jury. It is unreasonable to suppose that it influenced the jury in any way, even if it were heard by them.

It is also urged that the damages are excessive. The plaintiff perhaps was disposed to exaggerate his injuries, and may have recovered more completely than he would have had the jury believe. But it is reasonably certain that his shoulder was dislocated and two ribs broken.

The verdict was not so large as to show by its amount passion or prejudice, and the judgment, after the remittitur, does not seem to us excessive. It is affirmed.

Affirmed.