Casey v. Chicago City Railway Co. , 1911 Ill. App. LEXIS 1025 ( 1911 )

Mr. Justice Smith

delivered the opinion of the court.

Four grounds are urged for the reversal of the judgment. First, that the verdict as to appellant is not justified by the evidence; second, the verdict is against the manifest weight of the evidence; third, errors in the admission of improper, and the exclusion of proper evidence; and, fourth, the verdict is excessive.

In support of the first ground it is urged that the record is barren of any proof of the cause of the . death of Tessier or any evidence that it was caused by any of the acts of negligence alleged against appellant. We cannot concur in this proposition. We think that there is direct and positive evidence in the record showing that the deceased was struck by the heavy crane while in such position that fatal injuries would naturally follow; and that the injuries caused by the crane produced' his death as a direct result, was a legitimate conclusion from the evidence.

Upon a careful review of the evidence we cannot say that the verdict is against the manifest weight of the evidence. The testimony is conflicting upon the question whether Broderick had knowledge or notice of the fact that Tessier was at work on the crane track, or might be there, before and at the time the crane was moved. It was a question for the jury, and we perceive no good reason for disturbing their verdict.

H. M. Webber, a claim agent for the Chicago Telephone Company, was called by the plaintiff, and testified as abstracted that he had been served with a subpoena to bring in the contracts or records showing installation, if any, of work at the power house in question for the Chicago City Bailway Company. He was thereupon asked on cross-examination by counsel for appellant the following question:

“Q. Have you as representative, claim agent of the Chicago Telephone Company, made any arrangement or settlement with Elmer & Cohen, the attorneys for the plaintiff ? ’ ’

. The court sustained an objection to the question. The ruling was not erroneous. It was not proper cross-examination, the subject not haying been referred to in the direct examination of the witness.

In the direct examination of appellant’s switchboard operator, Broderick, he was asked:

“Q. What was the custom and practice in regard, if any, in regard to giving you notice whenever anybody had to go upon the crane?” The court sustained an objection to the question, and we think properly. The question does not call fór a general .custom. Tessier was not injured on the crane. No offer was made nor was there any attempt to show that Tessier or his fellow workman had been informed of any custom which was a rule of conduct for men engaged temporarily in such work as the telephone employes were doing. The question whether there was any requirement by appellant or by the switch operator, as to when persons should or should not, or could or could not, go upon the crane or crane tracks, was not proper in the absence of any communication thereof to the plaintiff’s intestate or his foreman. The cases holding general customs of doing business in railroad yards by rail-, road men, of which other railroad men were presumed to have knowledge, are admissible, are not applicable in this case. -The parties here involved were acting under special and temporary circumstances, with reference to which there could not be a known general custom, in the nature of things.

We think the verdict was for a liberal amount, but we cannot say that it was so excessive in amount as to indicate that the jury were improperly influenced in awarding the damages, or that we should interfere with the verdict and judgment on that ground.

The judgment is affirmed.

Affirmed.