216 Ill. 202 | Ill. | 1905
delivered the opinion of the court:
But two questions are presented upon this record. The first is upon the refusal of the court to give the peremptory-instructions asked by appellant at the close of plaintiff’s evidence and at the close of all the evidence. The second is upon the admission of certain evidence. The first question therefore to be considered is whether or not the evidence, from all the inferences that may be drawn therefrom, fairly tends to support plaintiff’s cause of action, and not whether plaintiff has proved her cause by a preponderance of the evidence, as is apparently contended for by appellant. If there was evidence fairly tending to support plaintiff’s cause of action as laid in the declaration, then there was no error in the refusal of the court to give the instruction.
The accident in question occurred upon what is known as appellant’s Cottage Grove avenue line, which is operated by endless cable. The record shows that the train involved in the accident was composed of a grip and two back cars until it reached Eighteenth street, at which point the rear car, or what is known as the Indiana avenue car, was detached from the train and the grip and one car proceeded on their journey. The evidence for appellee at least fairly tends to show that appellee and her friend, a Mrs. Eroelich, took a Cottage Grove avenue car at the corner of Twelfth street and Wabash avenue. The car was going south, and they got on the car next to the grip, on the back platform. The evidence shows that there were two or three other persons standing on the back platform and people were holding on to the straps inside. Either appellee or her friend paid the fares. They rode upon the back platform for a short time, and appellee said to the conductor, “I wish we could get a seat,” and Mrs. Eroelich asked the conductor if there were any seats on the grip, and the conductor replied, “Yes, ladies, there are.” Appellee then said, “When we get to the next stop we will get off and get one.” The conductor replied, “You do not need to wait to do that, ladies; you can walk right through the car there.” The two ladies then started through the car, Mrs. Eroelich being in the lead. When they got to the front platform Mrs. Eroelich crossed over and appellee followed, and about the time appellee was stepping from one car to the other the car was swinging around the corner at Twenty-second street.' Other witnesses- confirm the testimony of the above named, that the car gave a sudden jerk and appellee was thrown from the car and injured substantially as alleged in the declaration. The evidence shows that the conductor knew that the car would swing around this corner, and knew that the car was near the corner when he told appellee to walk through the car. It was therefore his duty to infprm her of the danger of the car making the sudden turn, or to have so controlled the car that there would have been no danger in her passing from one car-to the other. The night was dark and misty, and while appellee admits that she knew of the condition of the track at this place and knew of the turn, yet she was unable to tell, nor did she know, that she was at or near this point.
Nor do we think it was negligence per se for appellee to be or ride on the platform of the street car, as contended by the appellant, and especially under the circumstances under which she came to be upon the platform of the car. Cases cited oby the appellant have no application to the case at bar . for the reason they are all upon cases where the parties were riding upon the steps of a steam railroad and a different rule therefore applies, as it is much more hazardous to ride upon the platform of a fast moving train. Besides, the public are not, as a usual thing, invited to ride upon the platform, but, on the other hand, are given warning that they must neither stand nor be upon the platforms of cars while they are in motion. Under the circumstances under which appellee came to be upon the platform of the car, whether or not it was such negligence as would preclude a recovery, and whether appellee, standing upon the platform, was in fact negligent, were questions of fact for the jury to determine from all the facts and circumstances surrounding the transaction. North Chicago Street Railroad Co. v. Baur, 179 Ill. 126.
We are therefore of the opinion that it was not error to refuse the instruction.
As to the first evidence complained of, the following colloquy took place between the court, counsel and a witness:
Q. “What did you find on pressure of that nerve, if anything?
A. “Evidence of pain as complained of by the patient.
Judge Page: “That is subjective, isn’t it? ,
A. “Entirely; yes.
The court: “Well, am I called upon to rule here?
Judge Page: “If he doesn’t go any further I don’t care. I object to it on the ground that it is subjective, and the doctor says it is.
The court: “Well, my ruling will be to overrule your objection.”
It will be seen that the attorney for appellant remarked, “If he doesn’t go any further I don’t care.” The record discloses that the examination along this line was discontinued, and we are unable to see how appellant can now urge that the admission of this evidence was error. If it was, in fact, erroneous, counsel having said that he did not care for what had already been testified to, is in no position to assign an admittance of the same as error.
The only other evidence complained of is as follows:
Q. “When you say she was nervous are you telling what she told you, or not?
A. “No, sir; I know that myself; she is very nervous.
Q. “Just disregard everything she told you. Tell me anything you saw, if you have personal knowledge yourself upon which to base the statement that she is nervous.
A. “Only just her state of nerves. She seems nervous and speaks—
Q. “Only just her statement, did you say? .
A. “Her state of nerves.
Q. “Do you know anything about it except from her statement ?
A. “No, sir.”
While the two answers are somewhat conflicting and should have been explained, yet we do not think the error was so great as to warrant a reversal of the case, as other competent evidence was admitted showing her nervous condition. Nor do we think the case of Chicago and Eastern Illinois Railroad Co. v. Donworth, 203 Ill. 192, controlling or even in point in this case. In that case the witness was testifying as to the hearing of one ear of the defendant, and the court held that inasmuch as the witness had to take the statement of the defendant in order to determine whether or not he was in fact deaf, it was not competent. In cases of extreme nervousness a physician or other person “of ordinary observation can tell by the looks, actions and manner of speech of a person, and is not compelled to rely upon what such person says in reference to the same in order to form an'opinion. The answer of the witness, when interrupted, was proceeding upon a reasonable line of observation.
Finding no reversible error the judgment of the Appellate Court is affirmed.
Judgment affirmed.