Smiley v. Barnes , 196 Ill. App. 530 ( 1914 )

Mr. Justice McBride

delivered the opinion of the court.

4. Intoxicating liquors, § 245^*—when verdict for loss of support not excessive. In an action by three minor children to recover for injury to their means of support by the death of their father, where such death was the result of personal injuries sustained by deceased while intoxicated as a consequence of drinking liquor sold to him by defendant, a saloon keeper, a verdict for plaintiffs of $3,000 held not excessive, where it appeared that plaintiffs were of the age whiph required education and the ordinary expenses of rearing them, and that deceased was an active and reasonably prosperous man, thirty-four years of age, with an earning power of $1,500 a year, from which he properly supported and provided for plaintiffs. 5. Appeal and error, § 1406^*—when verdict will not be disturbed on ground of excessive damages. A verdict will not be disturbed on the ground of excessive damages where it does not appear that the jury were influenced in assessing damages by sympathy, prejudice or some other improper motive. 6. Instructions, § 104^*—when instruction as to amount of recovery not erroneous. In an action to recover for death due to defendant’s alleged wrongful act, an instruction containing a correct recital of the essential facts to be proven by plaintiffs in order to recover in the action is not open to criticism because it concludes: “Then the law makes it your duty to find said defendant guilty and assess plaintiffs’ damages as explained in these instructions. 7. Intoxicating liquors, § 249^*—when instruction as to proximate cause of death not erroneous. In an action by minor children to recover for injury to their means of support by the death of their father, as a result of personal injuries sustained while intoxicated as a consequence of drinking liquor sold to him by defendant, a saloon keeper, where the immediate cause of death was hemorrhage of the nose, an instruction that, “If as a natural result of sales deceased became intoxicated and sickened, and that such sickness induced in him an increased strain upon the arteries of the body, whereby an artery was ruptured and he died therefrom, then such sales would be the proximate cause of his death, and this notwithstanding that there might have been at the time a diseased condition of his artery, which rendered it more liable to burst from increased pressure,” held not improper as invading the province of the jury in determining the question of proximate cause, it appearing that deceased had at one time been afflicted with spinal meningitis, tending to harden the arteries of the head, and that defendant sought to show that the hemorrhage was caused by the weakened condition of the arteries, and the objection not being raised that the elements set forth in the instruction did not constitute proximate cause and it not being pointed out how the jury could have been misled thereby. 8. Instructions, § 88*—when instruction on preponderance of evidence sufficient. The use in an instruction of the words “however slight” in speaking of the preponderance of the evidence does not warrant a criticism of the instruction where the party objecting thereto admits that the use of the words, “if the evidence preponderated but slightly,” in the instruction would have been good, there being no material difference between the expressions. 9. Instructions, § 89^*—when instruction sufficiently refers to number of witnesses as basis for determining preponderance of evidence. An objection to an instruction that it fails to mention specifically the number of witnesses as one of the things to be considered in determining the preponderance of the evidence is not well founded, where it appears from a reading of the whole instruction that the attention of the jury was called to the number of witnesses, among other things to be considered. 10. Intoxicating liquors, § 221^*—when expert testimony unnecessary to determine proximate cause of death. In an action by minor children to recover for injury to their means of support by the death of their father, which death was the result of personal injuries sustained by deceased while intoxicated as a result of drinking liquor sold to him by defendant, a saloon keeper, there is no necessity for proving the fact that the proximate cause of the death was the wrongful act of defendant by the expert opinion of doctors where the facts connecting the death with the intoxication can be proven by the persons who attended him. 11. Instructions, § 93^*—when instruction that testimony of expert witnesses should be considered proper. In an action where both sides introduce the testimony of physicians as expert witnesses, a requested instruction should be given advising the jury that the testimony of such witnesses as a class should be considered by the jury with all the other evidence in the case, although such instruction is faulty in calling the attention of the jury to a particular class of witnesses. 12. Appeal and error, § 1560^*—when refusal of instruction not prejudicial error. The refusal to give a requested instruction that the testimony of physicians as expert witnesses should be considered by the jury with all the other evidence in the case is not prejudicial error, since the jury must have understood that they were to consider such evidence. 13. Appeal and error, § 1525^*—when imperfect instruction will not cause reversal. Although the instructions given in a case may not be in every respect formal and accurate, yet where such instructions taken as a whole fully and fairly present the law of case to the jury, there is not such error as will justify a reversal. On Rehearing. Instructions, § 20^*—when instruction that jury must'not consider propriety of law upon which action based not misleading. An instruction in a civil action for damages for injury to means of support- of children, owing to the intoxication of the father, that it is not for the jury to consider the propriety of the law in force relating to intoxicating liquors under which the action is brought, held not misleading.