delivered the opinion of the court:
At the close of all the evidence appellant made a motion and offered an instruction to have a verdict directed for it. The court denied the motion and refused the instruction, and for that, error is assigned. If there was evidence in the record fairly tending to support the averments of the declaration, or any count of it, that instruction was properly refused.
As to the manner in which and the circumstances under which appellee received his injuries no evidence was offered except by appellee. Appellant has no evidence in the record and examined no witness on any branch of the case except as to the measure of damages, so that whatever evidence there is in the record tending to establish appellee’s case is uncontradicted and undisputed. The undisputed evidence shows that appellee, on the 28th day of January, 1899, between ten and eleven o’clock A. M., entered one of appellant’s electric cars, which was operated by a trolley, at Sixty-third street and Went-worth avenue, to make a journey over its line thence to Thirty-fifth street, where appellant had a line running east and west along the latter street, which appellee was to take to carry him west to Parnell avenue, where he resided; that appellee paid his fare and received a transfer for the Thirty-fifth street line; that when Thirty-fifth street was reached, and as appellee was alighting from, or just as he had alighted from, the Wentworth avenue car to go to the Thirty-fifth street car, at the junction of these two streets, the trolley-pole from the Wentworth avenue car from which appellee had just alighted or was alighting, fell from that car and struck appellee upon the head and knocked him down, and whatever injuries he did suffer resulted therefrom. Appellee was picked up in a dazed condition and carried to a store near the car line and taken thence home in an ambulance.
Appellee testified that he had a transfer, and his son testified that when he was brought home a transfer was taken out of his pocket. No witness denied that he had a transfer or that he received it in the regular way. It is now urged that because a transfer paper itself was not offered in evidence and is not in the record, that is fatal to appellee’s case. We do not think so. The action was not upon the transfer paper. It was a mere incident to appellee’s right. It was sufficient that the undisputed evidence showed, or tended to show, that appellee did receive a transfer, and in consequence of that, and by-virtue of it, was a passenger on both lines of appellant while making a continuous journey to his destination. North Chicago Street Railroad Co. v. Kaspers,
It is further said by appellant that there is nothing to show what caused the trolley-pole to fall, or to show that the car was run in a negligent manner with regard to speed, or defectively or wrongly constructed. It was not necessary for appellee to show these matters. As early as 1854, in the case, of Galena and Chicago Union Railroad Co. v. Yarwood,
Appellant contends that as certain counts in the declaration alleged that the car was not properly inspected,' and that other counts alleged that the bolts and connections of the trolley-pole were rusty and worn, these were specific charges of neglig'ence and there was no proof in the record to support them. Appellant, in its argument, seems to overlook the fact that the declaration contained six counts, and that in at least three of them there was no specific negligence charged. But if its contention was sound, as we think it is not, as applied to the counts charging specific negligence, it could not be applied to the counts charging general negligence. Touching this same objection, which was made in the Cotton case, supra, this court said (p. 49.5): “But it seems to be contended that, even admitting that a presumption of negligence arises from mere proof of the plaintiff’s injury and its cause, it does not follow that there is any presumption of the specific negligence alleged in the declaration. Even if it be admitted that the presumption is one of negligence generally, and not of any specific negligence, we think it sufficient to throw upon the defendant the burden of rebutting the specific negligence alleged. But the circumstances of the injury do, in our opinion, give presumptive evidence of at least the specific negligence charged in the first count of the declaration. That charge, as we have seen, is very general, and consists of negligently running and operating its road and the cars propelled thereon.” The first count of the declaration charges that appellant “so carelessly and negligently propelled and managed said car and trolley-pole that said trolley-pole broke away from said car and fell and hit plaintiff upon the head.” The fifth count charges that appellant “so carelessly and negligently manag'ed and operated said Wentworth avenue car, and trolley-pole attached thereto, that said trolley-pole fell and hit plaintiff upon the head.” The sixth or additional count charges that appellant “carelessly permitted plaintiff to be hit upon the head by said trolley-pole.” Applying the rule as announced in the above case, and as we think it is generally recognized, there can be no doubt but that the evidence in behalf of appellee was sufficient to cast upon appellant the burden of rebutting the negligence alleged in these counts.
Appellant says that even if- it be conceded that the rule res ipsa applies, the instruction should have been given, because there was no evidence in the record showing that appellant owned, operated or controlled the electric car lines in question. There was evidence in the record tending to show that appellant did operate and own the lines in question. Appellee’s son testified that the cars running upon the Wentworth avenue line bore the inscription, “The Chicago City Bail way.” Dr. Babcock, a witness for appellant, testified that on the same day that appellee was injured, and very shortly after the injury, he was directed by appellant to go and make an examination of appellee and was paid by the appellant for that service. Dr. Moyer, another witness for appellant, testified that he examined appellee on the morning of February 3, 1899, and that he was sent by the appellant to make the examination and appellant paid for it. Dr. John Leeming testified that he examined appellee on August 4, 1899; that he was sent by appellant to make the examination and was paid by it for so doing. (Consolidated Coal Co. v. Bruce,
In McNulta v. Lockridge,
Appellant, at the close of all the evidence, also offered six instructions asking the court to hold that appellee could not recover under the respective counts of his declaration. The ground of the contention is not stated in the instructions offered, and if it were upon the theory that there was a variance between the declaration-and. the evidence, the instruction should have been denied for the failure to point out wherein there was a variance, so that it might be obviated by proper amendment. (Chicago, Rock Island and Pacific Railway Co. v. Clough,
It is urged that it was error, on cross-examination, to ask the doctors introduced by appellant by whom they were sent and paid. We do not think so. It is always competent, on cross-examination, to ask a witness if he is in the employ of a party, or if at the time he rendered the particular service he was in the employ of such party, for the purpose of showing his relation to the case and his interest in it, as affecting his credibility and weight of his evidence. It being proper to ask the question and the evidence being properly in the record, it could be considered on any proposition it tended to establish.
It is also complained that appellee had closed his case and appellant had offered its evidence when appellee was allowed to re-call his son, John, and show by him the name or the inscription on the cars on appellant’s line. This was not error. It is in the discretion of the trial court to allow evidence that has been overlooked or omitted, at any stage of the case, and unless that discretion has been abused or injury is shown to have resulted from it, it cannot be said to be error. When this son of appellee was re-called and allowed to testify relative to the name appearing on the cars, the court informed appellant that if it so desired he would hear evidence on its part in denial of what the evidence thus allowed tended to show, but appellant offered no such evidence.
When this witness retired from the stand, appellee announced that he rested his case. Appellant’s attorney then said: “We desire to offer evidence, your honor, on the question of inspection of the cars, and so forth.” The court replied: “Very well; I won’t receive any evidence except as to the ownership of this line at this stage.” Exception was taken, and it is now urged that, inasmuch as appellee was allowed to show the inscription on the cars, it tended to show ownership, and that appellant should have been allowed to show that it did inspect its cars; that in the absence of proof of ownership appellant was not required to prove anything, and that as .there was no evidence, until the testimony of this son, of ownership, the court should have opened the case and allowed proof upon the question of inspection. It may first be said, there was evidence of ownership and operation of the car by appellant already in the record, and it would be a dangerous rule of practice to sustain error upon an assignment such as this. Appellant, in fact, offered no evidence upon the matter. No witness was put upon the stand; no question was asked. Nothing was done except a mere conversation or talk had between counsel for appellant and the court. Such procedure as that does not amount to an offer of evidence, and the remarks of the court did not amount'to a refusal to admit evidence. There can be no refusal to admit that which has not been offered, and counsel cannot, by engaging in a mere conversation with the court, although it may relate to the procedure, by merely stating what he desires to do, get a ruling from the court upon which he can predicate error. If appellant desired to make the contention it now makes, it should have at least put a witness upon the stand and proceeded far enough that the question relative to the point it is now said it was desired to offer evidence upon was reached, and then put the question and allow the court to rule upon it, and then offer what was expected to be proved by the witness, if he was not allowed to answer the question asked. It was not stated to the court that appellant did inspect the cars or could prove that the cars had been regularly inspected or recently inspected, or that the inspection that was made was an examination of the trolley-pole or its attachments, and to now hold that the case should be reversed upon the mere statement of counsel that he desired to offer evidence upon the question of the “inspection of the cars, and so forth,” would, as we think, be setting a dangerous precedent, and one that would tend to irregularity in such matters. Stevens v. Newman,
Other matters are urged by appellant with reference to the admission and exclusion of evidence, which relate particularly to the examination of the medical witnesses and experts. The objections grow chiefly out of hypothetical questions propounded to witnesses relative to the condition of appellee. The questions are long and the objection highly technical. We have examined the questions in the light of appellant’s argument, and think there was no material error in the ruling of the court in regard to them. One of the matters of evidence objected to is, that appellee was allowed to testify as to his wages and earnings previous to the time of, the injury, while there is no allegation in the declaration, or any count thereof, that appellee lost any specific wages or earnings and no allegation of any particular trade or profession. The evidence was that appellee was a carpenter and contractor and in relation to the wages he received in such lines of business. In Chicago and Erie Railroad Co. v. Meech,
It is also assigned as error that the court made improper remarks during the progress of the trial. This assignment we cannot consider. An examination both of the abstract and record discloses that no objection or exception was taken at the time. In Hall v. First Nat. Bank of Emporia,
Five instructions were given in behalf of appellee, and all are complained of. The first instruction told the jury that if plaintiff had proved his cause of action as alleged in his declaration he was entitled to a verdict. This instruction has several times been before this court and has been held to be unobjectionable. Pennsylvania Co. v. Marshall,
It is complained that the second instruction assumes that the appellant was the owner of the street railroads mentioned in the declaration. We do not think the instruction assumes anything, but tells the jury that if they believe, from the evidence, the matters stated in the instruction they shall find for the plaintiff But if the appellant’s construction of the instruction were correct it would not, for that reason alone, be error. There was a prima facie showing by appellee that appellant owned and operated the railroad which injured appellee, and there was no evidence even tending to contradict it, and it is not error for the court to assume, in an instruction, that which is established on one side and not denied on the other.
Appellee’s third instruction told the jury that if they found, from the evidence, he was a passenger of appellant and was struck and injured by the trolley-pole falling from appellant’s car, and that appellee was using due care, then the burden was upon appellant to show that “it did all that human care, vigilance and foresight could reasonably do, consistent with the character and mode of conveyance adopted, in the practical prosecution of its business, to prevent accident and injuries to passengers riding upon its cars or alighting therefrom and leaving the same.” It is said this instruction was in conflict with other instructions given for appellant, namely, the sixth, which was that appellee must prove that appellant owned and operated the car in question; the twenty-third, which was that appellant should exercise such care “as human beings are capable of, and such care as is consistent with the practical operation of its trains;” and the thirty-fifth, which was that a party charging negligence must prove it. We see no conflict. The rule of care is the same in appellee’s third and appellant’s twenty-third instructions, and as there were several counts in the declaration, some of which were not upon the relation of carrier and passenger, appellant’s thirty-fifth instruction was properly given; but when the relation of carrier and passenger was established, and the injury shown to have resulted from instruments and means wholly within appellant’s control, then, prima facie, the negligence of appellant was proven. To establish that the relation of carrier and passenger existed, it would naturally follow that it must be shown in some manner, either by admission or evidence, that appellant owned and operated the car in question, and that appellee was a passenger by having ridden, by being in the car, or in some of the ways by which that relation may arise.
Appellee’s fourth instruction is as to the measure of damages, and appellant complains that “it includes the element of prospective suffering and loss-of health.” The declaration, and at least two of the counts, allege permanent injury, and it was not error to instruct the jury to compensate appellee for not only what he had suffered, but what he would suffer.
It is said the fifth instruction given by the court sua sponte did not require the jury to find, from the evidence, the matters submitted, and it required of appellant a higher degree of care than it should. The instruction submits a number of matters of fact to the jury and correctly states the rule applicable, and concludes with a sentence beginning, “what is the truth the jury must determine from the evidence only.” We do not reg'ard the instruction as bad from any point of view. It does not state fully the rule as to the care required of appellant, but that is cured by other instructions, and particularly by appellant’s twenty-third, which deals with that sole question.
Appellant offered forty-two instructions, and thirty-one were given by the court. It complains that all were not given. We have examined them, and many of them were bad and should have been refused for that reason; others are covered by those given, and there was no error in refusing them. Appellant was treated more liberally than was its right in the matter of instructions, and the substantial errors were in its favor and at its request. The case required no such number and covered no such field, and we are satisfied appellant has suffered no injustice from the court in that regard.
Appellant has filed no brief in this case, but has filed an argument consisting of fifty-four pages, most of which is devoted to propositions which we are not authorized to consider in reviewing a case brought from the Appellate Court. For instance, it is urged that appellee is a malingerer and that he was- feigning much of the ailments and injuries to which he testified, and that the verdict is excessive and that it is contrary to the evidence. All of these matters were disposed of before this case reached this court. Unless the court has the aid of counsel in pointing out the particular defects, and the law relating to the matter, from the viewpoint of counsel urging objections, it cannot be expected to go through both the record and the whole field of the law to ascertain if some rule may not be applied that will be beneficial to the objector. The rules of this court require a brief and permit an argument, and the tendency of counsel is to too frequently avail themselves of that which is permissive and ignore that which is required.
As we view this record the judgments of the trial and Appellate Courts should be sustained. The judgment of' the Appellate Court is affirmed.
Judgment affirmed.