226 Ill. 530 | Ill. | 1907
delivered the opinion of the court:
It is first contended that the third count of the declaration does not show any duty resting upon the appellant to protect the appellee from injury consequent upon the collision of its car with said truck wagon at the opening in said wall, as it is said that count of the declaration does not show that said opening was in frequent use by teams as a passageway from Clark street to the Chicago river, and that from the averments of that count its use may have been only an occasional use and teams may have passed through it only a few times and at rare intervals, in which event the appellant would not have been required to take notice of its dangerous condition as a means of egress from and ingress to Clark street to said railroad grounds over appellant’s tracks, and that by reason of want of such notice the appellant was not required to take steps to guard against the injury of its passengers at that point, arising from collisions between its cars and passing teams and wagons. The sufficiency of the declaration was not challenged by demurrer, and the only action of the appellant questioning its sufficiency was by its motion in arrest of judgment. No defect is pointed out in the first count of the declaration, and while the negligence charged in that count is general, after verdict it was clearly sufficient to support a judgment in favor of appellee. (Chicago City Railway Co. v. Jennings, 157 Ill. 274; Illinois Central Railroad Co. v. Weiland, 179 id. 609; Chicago General Railway Co. v. Carroll, 189 id. 273.) We are also of the opinion that the third count, after verdict, when tested by motion in arrest of judgment, was sufficient to support the judgment in favor of the appellee. (Gerke v. Fancher, 158 Ill. 375.) That count averred the existence of the opening in the wall, that it connected with a plank roadway laid from Clark street through said opening westward to the freight house or dock house at the Chicago river, and “that long prior to and at the time and place in question said opening and roadway were used by teams and wagons.” While the extent of the use of the passageway through the opening is not averred and upon demurrer the averment might have been held to be insufficient, on motion in arrest of judgment the rule is different. The court will intend that every material fact, upon motion in arrest of judgment, alleged in the declaration or fairly or reasonably inferable from what is alleged was proved on the trial. Pennsylvania Co. v. Ellett, 132 Ill. 654.
It is next contended that the court erred in declining to take the case from the jury, and in refusing the instruction, after the motion for a peremptory instruction had been overruled, that the appellant could not be held liable for a failure to maintain a flagman, signal device or other such appliance at the opening in the wall to warn its servants, as its cars approached the opening, when a team or wagon was about to drive upon its south-bound track through the opening. Two grounds of negligence are relied upon as a basis of recovery: First, the failure of defendant, through its servants, to approach the opening in the wall with its cars with such diligence as. would enable it to discover the approach of a team and wagon in case the same were about to pass through the opening in front of its moving cars; and secondly, the failure to maintain at the opening a flagman or signal device or other appliance to give warning of an approaching team. The opening had been in the wall for a number of years. It was planked and connected with the driveway upon the railroad grounds leading to the river west of the opening. It had been used as a passageway for teams attached to vehicles for many years, which use was .frequent. The wall was so high that an approaching team from the west could not be seen by the servants of appellant in charge of its cars or appellant’s cars discovered by the driver of the team. We think, therefore, it was a question of fact for the jury, in view of all the circumstances disclosed by the evidence, to determine whether the appellant knew or ought to have known of the condition of said opening and driveway, and whether it was guilty of actionable negligence in approaching the opening with its car in the manner in which it did on the occasion of the injury to the appellee, or whether it had taken such reasonable precaution to warn its servants of the approach of teams through said opening as would reasonably guard its passengers from being injured by its cars coming in collision with such teams. The appellee was guilty of no wrong, and the obligation rested upon the appellant to use a very high degree of care to safely' transport her upon its car, and it was required, in law, to do all that human care, vigilance and foresight could reasonably do, in view of the character and mode of conveyance adopted, consistent with the practical operation of its cars, to safely carry the appellee; (North Chicago Street Railroad Co. v. Polkey, 203 Ill. 225; Tri-City Railway Co. v. Gould, 217 id. 317;) and whether it used such care and performed the duty which it owed the appellee at the time of the collision between its car and said truck wagon,' in view of the conflicting evidence, was a question of fact. We think the court properly declined to take the case from the jury, and did not err in declining to instruct the jury that the appellant was not liable to the appellee by reason of the failure on its part to maintain a flagman, signal device or other such appliance at the point where teams came upon the track through the opening in said wall.
It is further contended that the court erred in giving to the jury the appellee’s second instruction, which reads as follows:
“The court instructs the jury that it is the duty of common carriers to do all that human care, vigilance and foresight can reasonably do, under the circumstances and in view of the character and the mode of conveyance adopted, reasonably to guard against accidents and consequential injuries, and if they neglect so to do they are to be held strictly responsible for all consequences which directly flow from such neglect, (provided such neglect and consequence is alleged in the declaration and is established by the proofs;) that while the carrier is not an insurer of the absolute safety of the passenger, it does, however, in legal contemplation, undertake to exercise the highest degree of care to secure the safety of the passenger and is responsible for the slightest neglect resulting in injury to the passenger, (provided such neglect and injury is alleged in the declaration and is established by the proof,) if the passenger is at the time of the injury exercising ordinary care for his own safety.”
The criticism made upon this instruction is, that it does not limit the degree of care required of the appellant to such care as is consistent with the practical operation of its street car line. In Tri-City Railway Co. v. Gould, supra, such limitation was held necessary, and for a failure to include such limitation in the instruction that case was reversed. The instruction in the case at bar, defining the degree of care required of appellant, differs from the instruction given in the Gould case in this: That the instruction in this case requires appellant to use only such care as it could reasonably use under the circumstances, which italicized words were omitted from that instruction, and in this case the jury were repeatedly informed by instructions given on behalf of the appellant that it was bound to use only such care as was consistent with the practical operation of its street car line, and it does not appear that any instruction of like effect was given on behalf of the defendant in the Gauld case. It has been repeatedly held by this court that where an instruction does not direct a verdict, or amount to such direction, it may be supplemented by other instructions in the case, and that where, in such case, the instructions, when considered together and as a whole, correctly state the law upon a given subject, an omission in an}'- one instruction in the series will be cured if the instructions, as a series, are correct. (Pardridge v. Cutler, 168 Ill. 504; Montgomery Coal Co. v. Barringer, 218 id. 327.) We think, when the second instruction given on behalf of the appellee is considered in connection with the instructions given on behalf of the appellant, that the jury were not misled as to the degree of care which the appellant was bound to use in operating its cars at the time the appellee was injured. The instruction above referred to, with the exception of the parts thereof enclosed by parentheses, was approved in the case of Chicago and Alton Railroad Co. v. Byrum, 153 Ill. 131.
The appellee claimed, and sought to show on the trial, that she was suffering from paralysis as a result of the injury which she sustained at the time of the collision between the street car and the truck wagon, and she called a number of medical experts as witnesses on her behalf, who testified that in their opinion such was the fact. From their testimony it appeared that they had talked with the appellee, and made experiments, by sticking pins in her flesh and manipulating her limbs, to determine whether or not she was feigning paralysis, and it is urged that the court erred in permitting such facts to go to the jury and in permitting such witnesses to state to the jury their opinions as to appellee’s condition, based upon subjective, rather than objective, conditions. We have read the evidence of those witnesses in full as it appears in the record, and do not think their evidence, or the rulings of the court in admitting the same, subject to the criticism made thereon. The court repeatedly informed the witnesses that they were to base their opinions only upon what they hacl seen, and not upon any statements made to them by the appellee or upon any physical manifestations of the appellee within her control, and in order to more fully exclude from the consideration of the jury all such statements, experiments and manifestations, the court gave to the jury, at the instance of the appellant, an instruction which excluded specifically all evidence from the consideration of the jury which could by any possibility be regarded an infringement of the rule against the consideration by them of any subjective condition in the appellee brought out during the examination of the expert witnesses.
It is also said that the judgment should be reversed by reason of certain errors which it is urged were committed during the course of the trial, viz., alleged misconduct of the attorney for appellee, misconduct upon the part of the trial judge and misconduct on the part of the jury during the trial. The present trial was the third trial of the case, two juries having previously disagreed, and from the commencement of this trial to its close there was a persistent effort on the part of the attorneys representing the respective parties to bring before the jury certain facts and circumstances which were deemed by the trial court entirely foreign to the proper presentation of the case to the jury, and the rulings of the trial judge were frequently evaded or disregarded by the attorneys of the respective parties. During the long trial, which covered a period of ten days, at times the jury apparently participated somewhat in the feeling and excitement incident to the trial. The trial judge, however, appears to have ruled fairly on the questions presented to him for decision during the trial, and the only criticism, if any, to which he should be subjected is, that he did not use the power vested in him by the law to enforce prompt obedience to his rulings. We think the case was not conducted by the counsel engaged in the trial thereof in the manner in which a case should be tried in a court of justice. The fault, however, was not all on one side, and we are not disposed to reverse the case on account of the misconduct of counsel.
There are other errors assigned upon the record and discussed in the briefs, such as that the court erred in not discharging the jury during the trial on the ground of bias and prejudice against the appellant, upon its motion; and that the jury, by questions asked of witnesses while they were giving their testimony upon the witness stand, showed that they were prejudiced against the appellant and disqualified; and that the court erred in declining to' discharge the jury within a reasonable time after they had retired to consider their verdict, on the motion of appellant; and that the court erred in the manner in which the Jury were directed to be polled after they had returned their verdict into court. All of these questions have been carefully considered, but we have discovered no error in this record which we think should work a reversal of the judgment rendered by the trial court.
The judgment of the Appellate Court will therefore be affirmed.
Judgment affirmed.