Devine v. Chicago City Railway Co. , 1908 Ill. App. LEXIS 725 ( 1908 )

Mr. Justice Freemar

delivered the opinion of the court.

It is claimed in behalf of appellant that the cause was tried while there was still pending and undetermined a demurrer to the declaration. This question, however, was not raised in the trial court until after the verdict. There was no joinder in demurrer. As said in Hopkins v. Woodward, 75 Ill. 62-64, while it may have been a technical error to proceed to trial with a demurrer undisposed of, no issue of law was raised as the pleadings stood. That case recognizes some apparent- inconsistencies in the decided cases, some of which apparently hold that it was error to proceed to trial under such circumstances and “others that it was no error to proceed to trial where no issue of fact was made up.” While it may have been the duty of plaintiff’s attorneys to call up the demurrer and have it disposed of, it was, we think, a substantial waiver in effect on the part of defendant’s counsel to fail to call the court’s attention to the demurrer before proceeding to trial if they desired and intended to rely upon it. When counsel keep silence where it is a duty to speak, thereby keeping the court in ignorance, and so induce it to commit a technical error, we are not disposed to encourage such practice by giving undue and unnecessary importance .to an inadvertent technical error thus induced, not harmful in its effect. As said in Pinkerton v. Snydor, 87 Ill. App. 76-81, after a trial upon the merits in which counsel for defendant participated, he cannot now be heard to complain that there was no issue of fact to be tried. In that case it was held upon authority of cases there cited that the question not having been raised in the court below until after verdict the irregularity was cured by the verdict.

It is urged that the verdict is not justified by the evidence. No good purpose would be served by here reviewing the testimony at length. There is evidence as shown in the preceding statement tending to show that the conductor of the car struck the deceased a violent blow with what the witness calls a “billy,” and that the deceased was knocked or at least then fell off the car and was found unconscious and soon after died. He and his companion may have been and apparently were under the influence of liquor. It is claimed that when thus “ejecting” the deceased from the car the conductor was threatened w-ith danger and used no more force than was necessary. It was for the jury to determine the question of fact, whether the use of such violence by the conductor was justified by the conditions and whether if unnecessary violence was used it was the cause of the death which so soon followed. We are of opinion there is evidence which justifies the finding and that no sufficient reason appears why it should be disturbed. We cannot concur in the contention that the verdict is -against the manifest weight of the evidence, nor do we regard the ruling objected to upon certain questions propounded, it is said, for the purpose of testing the memory of one of the witnesses, as of material importance, nor as erroneous.

It is undoubtedly true, as held in Kiley v. Chicago City Ry. Co., 189 Ill. 384, that when a passenger refuses to pay fare and refuses to leave the train and compels the conductor to resort to force, recovery cannot ordinarily be had for an injury which he voluntarily brings upon himself and which “is the result of his own forceable resistance,” as said in Peoria & Pekin T. Ry. Co. v. Hoerr, 120 Ill. App. 65. But where acting in the scope of his employment a servant improperly exercises his authority and uses more force than the circumstances of the case require, the master is liable for the wrongful assault. Whether in this case the conductor exceeded the lawful limits of his authority was a question for the jury, and the evidence warrants, we think, their conclusion.

Objection is made to an instruction given at the instance of appellee’s counsel, which concluded to the effect that if the jury further believed from the evidence the plaintiff “has proved the other averments of his declaration,” they should find defendant guilty. It is objected that whereas the court at defendant’s instance instructed the jury the plaintiff could not recover under the first count of the declaration and the second count charged only that the acts of the conductor were wanton and wilful, this instruction authorized a verdict of guilty upon the averments of the rejected first count. We do not think, taking the instructions together, the objection is well taken. Having told the jury in express terms to disregard the first count, the effect of the language complained of was to require them to believe from the evidence that the plaintiff had proved the averments of the second count. That count charged wilful and wanton use of more force and violence than was reasonably necessary, which is what appellant’s counsel say it was necessary for the jury to find from the evidence to entitle appellee to recover. Such is the reasonable construction of the language of the instruction complained of. While the phrase of the instruction in question did not, we think, improve the instruction, it is not, we think, injuriously erroneous. We find no error in the court’s refusal to give the instruction requested hy appellant’s counsel relating to self-defense,, in view of the evidence.

The judgment of the Superior Court must be affirmed.

Affirmed.