Bryan v. Chicago Herald Co. , 1911 Ill. App. LEXIS 762 ( 1911 )

Mr. Presiding Justice Smith

delivered the opinion of the court.

The principal question presented to this court on this record is the action of the trial court in giving to the jury at the close of the plaintiff’s case a peremptory instruction to find the defendants not guilty. In view of the conclusion which we have reached in this case, we shall not enter into a detailed discussion of the evidence. We think the evidence introduced on behalf of the plaintiff, when taken to be true, together with all legitimate inferences which may be drawn therefrom in favor of the plaintiff, tends to support the cause of action set out in the declaration (Hewes v. C. & E. I. R. R. Co., 217 Ill. 500) and that the court erred in sustaining the motion for a peremptory instruction and instructing the jury to find the defendants not guilty.

In passing upon a motion for a peremptory instruction the question of the preponderance of the evidence does not arise, nor is the court concerned with the weight of the evidence introduced. The fact that different inferences might fairly be drawn from the facts and circumstances shown in evidence is not material. It is only when there is no evidence whatever produced on some material point to sustain a verdict that a court is justified in refusing to submit the case to a jury, and giving a peremptory instruction to find for the defendant. “If there is no evidence, or but a scintilla of evidence, tending to prove the material averments of the declaration, the jury should be directed to return a verdict for the defendant. (Libby, McNeill & Libby v. Cook, 222 Ill. 206, 212).” In Offutt v. Columbia Exposition, 175 Ill. 472, it was said: “Much confusion has doubtless arisen from the different meanings attached to the phrase ‘tending to prove,’ bnt giving it the meaning as held by this court in the Bartlett case, above cited, that it is evidence upon which the jury could without acting unreasonably in the eye of the law, decide in favor of the plaintiff or the party producing it, most of the apparent conflict between the different cases disappears. Thus it was said by Mr. Justice Maulé, in Jewell v. Parr, 13 Com. Bench, 909, ‘ applying the maxim, de minimis non curat lex, when we say that there is no evidence to go to the jury, we do not mean that there is literally none, but that there is none which ought reasonably to satisfy the jury that the fact sought to be proved is established. It is of course true that there are cases where there is literally no evidence in support of some material and necessary allegation, but there are many others where there may be some evidence tending to some remote degree to support every allegation, yet of too inconclusive and unsubstantial a character to be the foundation of a verdict. In either of such cases the court may, when the question is properly raised, so determine and direct a verdict as in cases where there is no evidence. A mere scintilla of evidence, if it means anything means the least particle of evidence—evidence which without further evidence is a mere trifle—and as the law does not regard trifles, we see no reason why on such a motion the court may not adjudge such evidence insufficient in law, and direct a verdict as in cases where there is no evidence.’ ”

Upon a careful review of the evidence in this case, and carrying in mind the rulings of onr Supreme Court in the above cases, and others cited to us, we are clearly of the opinion that the evidence offered by the plaintiff below, when taken as true, with all legitimate inferences which the jury might draw from it in favor of the plaintiff, fairly tended to support the cause of action set out in the declaration, and that the case should have been submitted to the jury.

Inasmuch as the case must be reversed and the cause be remanded for a new trial, we deem it just to the parties to refrain from any discussion of the evidence which must go before another jury. The trial court and jury should hear the cáse upon its merits uninfluenced by anything that may be said in disposing of this appeal.

For the error in giving the peremptory instruction the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.