West Chicago St. R. R. v. Levy

Mr. Justice Shepard

delivered the opinion of the court.

Appellee recovered in the Circuit Court a verdict and judgment for $10,000, for alleged personal injuries. He was driving north in the car tracks of the appellant along and upon Bobey street, in Chicago, and was overtaken by_ an electric car moving in the same direction, and operated upon the same tracks in which he was driving, and in the collision that ensued, the injuries complained-of were suffered.

Much argument has been expended, and, considerable evidence was heard, upon some circumstances which are altogether immaterial, except, perhaps, as affecting the credibility of witnesses who testified in behalf of appellee, and we will spend no time in magnifying their importance by a discussion of them.

Appellee had the lawful right to drive in the car tracks whether the snow that was on the ground was deep or not, subject only to his duty to exercise due care to avoid an undue interference with the reciprocal right of appellant, and to avoid a collision, and while so driving, the law guaranteed him protection against such a negligent operation by appellant of the tracks as would inevitably lead to his injury., N. C. S. R. R. Co. v. Zeiger, 78 Ill. App. 463.

Whether, being in the tracks, he exercised ordinary care in an attempt to drive off and avoid being struck by the approaching car after he knew, or had reason to know it was coming, or, in other words, was in the exercise of ordinary care, under the circumstances of the situation, for his own safety, was a question of fact for the jury.

The theory of the appellant, at the trial and here, is that appellee was at first driving in the parallel track, and upon the approach of the car suddenly turned out of that track into and upon the one along which the car was moving, and that this was done so suddenly and unexpectedly that the motorman was unable to prevent the collision, although he made every effort to do so.

The evidence in support of such theory, and that relied upon in support of appellee’s theory that he was driving, from the first, in the tracks upon which he was struck, is absolutely conflicting and irreconcilable. In numbers, and perhaps in opportunities for seeing, the preponderance seems to be with the appellant, but mere preponderance in such respects is not enough to justify the reversal of a judgment.

Numerous other elements that are not visible to us were before the jury and trial judge, from which to determine where the truth lay, and their determination in such respect must be final, where, as here, we can not say they were clearly wrong.

The declaration alleges that “ By means of the premises plaintiff was then and there severely and dangerously cut, bruised, wounded and injured, both internally and externally. And plaintiff’s back and spine and brain were thereby, then and there severely and dangerously and permanently injured, and divers bones of his body, arms and limbs were then and there and thereby fractured and broken, and plaintiff was otherwise severely, dangerously and permanently injured both internally and externally. That on account of said injuries caused as aforesaid, plaintiff became sick, sore, lame, disordered and injured, and so remained for a long space of time, during which said time he suffered great bodily pain and mental anguish, and still is languishing and intensely suffering in body and in mind, and in future will continue to suffer from* the effect of said injuries for the rest of his natural life.”

It is insisted by appellant that the declaration is not, in such respects; sufficient to permit, as was done, evidence of injury to the eyes of appellee, in the particular that atrophy of the optic nerve and a loss of two-thirds the power of sight, had ensued as a consequence of the accident. And it is argued that evidence of such injury is evidence of special damage which needs to be specifically set up in the declaration in order that proof thereof may be admitted. Chitty on Pleading (Yol. 1, star page 395, Ninth Am. Ed.), says:

“ Damages are either general or special. General damages are such as the law implies or presumes to have accrued from the wrong complained of. Special damages are such as really took place and are not implied by law, and are either superadded to general damages arising from an act injurious in itself,' * * * or are such as arise from an act indifferent and not actionable in itself, but injurious only in its consequences.”

The reason or ground for requiring particularity in the statement of special damages, or such as are not implied by law, in order to entitle the plaintiff to'give evidence thereof seems to be to avoid surprise to the defendant. Olmstead v. Burke, 25 Ill. 86.

There is an extensive review of authority in this State, in C. & E. R. R Co. v. Meech, 163 Ill 305, as to when proof of loss of profits or earnings may, and when it may not, be made under a general averment of plaintiff having been hindered and prevented from attending to and transacting his ordinary business and affairs, as the immediate result of injuries received, and the rule there announced, as deducible from the cases reviewed,, was restated in Chicago City Railway Co. v. Anderson, 80 Ill. App. 71. It has also been lately applied by the Supreme Court in N. C. St. R. R. Co. v. Brown, 178 Ill. 187.

We apprehend the principle is the same in this case. Here was the general averment of bodily injuries suffered by appellee, already quoted, and we think it was all that was required to entitle the appellee to show the injury to a particular part of his body, to wit, his optic nerve. We fail to comprehend why an injury to the nerve of his eyes should be required to be specially set forth in the declaration with more particularity than the injury to other nerves which caused the persistent vomiting that appellee suffered, concerning which complaint is not made.

It seems to be plain enough that stick injuries to particular parts of the body do not require to be specially set forth in the declaration, but that evidence supporting them may be shown as natural results following upon or flowing from the general injury set forth.

Tyson v. Booth, 100 Mass. 258, was an action of tort for shooting the plaintiff. The evidence tended to show that one of the shots received by the plaintiff lodged upon or near the optic nerve of his right eye, ultimately destroying its power of sight, and that other shots lodged in other parts of his body, and that shot so lodged as some of them were, and pressing upon a nerve, might so affect the nervous system as to produce convulsions or fits, such as was shown the plaintiff suffered from. And it was held that without alleging special damages in his declaration the plaintiff might prove that he became subject to fits as a result of the assault. It may be properly added, that the statutes of Massachusetts have net changed the common law rule, that under a general allegation of damage a recovery may be had for all damages which are the natural or necessary consequences of the cause of action set forth in the declaration; and that it is only when special or peculiar damages are claimed that it is necessary to aver them specifically. Prentiss v. Barnes, 6 Allen, 410.

Appellee not having seen fit to furnish any aid to us upon this point, we will not pursue it further, although it is quite likely that more direct authority upon it may exist in this State than we have been able in our hurried examination to place hand upon.

Appellee’s seventh instruction was in part as follows:

“ If you find for plaintiff you will be required to determine the amount of his damages. In determining the amount of damages the' plaintiff is entitled to recover in this case, if any, the jury have a right to, and they should, take into consideration all the facts and circumstances in evidence before them; the nature and extent of plaintiff’s physical injuries, if any, testified about in. this case, so far as shown by the evidence; his suffering in body and in mind, if any, resulting from such injuries, and such future suffering and loss of health, if any, as the jury may believe from the evidence before them in this case, he will sustain by reason of such injuries.”

The part of the instruction quoted is almost identical with one that was approved in H. & St. J. R. R. Co. v. Martin, 111 Ill., on page 232, and, again, in Chicago City Ry. Co. v. Taylor, 170 Ill., on page 57, and consequently it is not subject to the criticism -urged against it, concerning mental pain.

The modification by the court of appellant’s twenty-eighth instruction was rendered necessary because the instruction as tendered, assumed as a fact, either conceded or conclusively proved, that appellee was run into when attempting to cross the tracks in face of the approaching car. "VVe have already said that whether appellee was attempting to cross the tracks in face of the moving car, or was driving along the track and when run into was attempting to get off, constituted a vital point in the different theories of the parties upon which the case was tried.

As to the instructions asked by appellant which were refused by the court, we must stand content with saying we discover no injurious error in regard to their refusal, and will not go into a-consideration of them in detail.

We are not without suspicions that the appellee is not so permanently injured as he claims to be, and that the damages awarded are greater than they ought to be.

From the fact, however, that appellant’s counsel voluntarily waived their right to argue the case to the jury, the inference is, they thought at the trial that but little could be said in mitigation of damages, if, under the instructions, (more than twenty for appellant), which were fully as favorable as the appellant was entitled to, the appellee was entitled to recover at all.

And, for anything that has been pointed out to us, or that is discoverable by us in this stage of the case, we know of no rule of law that will permit us to say the jury and trial judge erred in the amount awarded.

The conduct and remarks of counsel for appellee during the trial (not in closing argument), are urged upon us as a reason for reversing the judgment, but no ruling of the court was had and exception taken to the most objectionable matters.

There was a good deal of offensive horse-play indulged in in the presence of the jury, and some remarks to the court were made over his refusal, temporarily, to admit evidence, that might properly be called outrageous, if we felt that the able-bodied trial judge needed our protection in such respects, but such are not available as legal error.

We see no reversible error in the record, and therefore affirm the judgment. Affirmed.