134 Ill. App. 149 | Ill. App. Ct. | 1907
delivered the opinion of the court.
Defendant (appellant) requested the court to give the following instruction:
“You are further instructed as a matter of law that if you believe from the evidence that when the plaintiff started to drive across the tracks of the defendant on the occasion in question he saw the south-bound train in question approaching from the north and knew that said train was coming at such a rate of speed' that he could not cross said tracks without being struck by said train unless said train should be stopped or slackened in speed and that so knowing he deliberately took the chances of crossing said track in safety, then he cannot recover in this case and you should find the defendant not guilty.”
The court refused to give the instruction. Appellant assigns error upon this action of the court.
In our opinion there was abundance of evidence in the case to require the giving of this instruction. Appellee’s intestate testified that he was seated on his wagon facing north while it was standing on the scales on the east side of State street, and that he saw this train about 13th street. The testimony of Egenthaler, Bums, Cahill and Miller as to the clear view of the street from the scales, and .the speed of the train, and the testimony of Gaynor, Burns, Maguire, Butler, Braun, Stratton and Soszynski, as to the distance of the train from the wagon at the time appellee’s intestate started to cross the tracks of appellant, afforded a substantial basis for the theory of appellant which is embodied in the instruction. The tendered instruction correctly announced the law applicable to the facts which the evidence tended to prove, we think, and should have been given. Hot Springs Ry. Co. v. Johnson, 64 Ark. 420; Helber v. Spokane St. Ry. Co., 22 Wash. 319; O’Neil v. Dry Dock E. B. & B. R. Co., 129 N. Y. 125; Ehrisman v. East Harrisburg City P. Ry. Co., 150 Pa. St. 180; Chicago W. Div. Ry. Co. v. Bert, 69 Ill. 388; North Chicago Electric Ry. Co. v. Peuser, 190 id. 67. The doctrine of the instruction was approved in Chicago Union Traction Co. v. Jacobson, 217 Ill. 404. The testimony would warrant the conclusion that Soszynski .knew when he drove his heavily loaded wagon upon appellant’s track that a collision would be inevitable in the ordinary operation of the train, unless the gripman of appellant could prevent the collision by his care and diligence. The instruction was based on the rights and duties of the respective parties at the place where the accident occurred. The hypothesis of fact stated in the instruction was such as would make the act of driving upon the track negligent as a matter of law.
The court should have given the following instructions requested by appellant:
“The court instructs you that with reference to the gripman on the occasion in question, the law did not require him to anticipate or to guard against anything which was not reasonably to be expected, and the law did not require him to regulate his conduct with reference to any conduct of others not reasonably to be expected by him under the circumstances in evidence. ’ ’
“The law does not require or exact of a street car company that its servants should be all the while upon their guard against dangers not reasonably to be expected, or against unusual or extraordinary occurrences or conduct on the part of others, nor does it require them to conduct their cars with a degree of caution that would prevent the practical operation of its road. ’ ’
These instructions were applicable to the evidence in the case. They state the law with sufficient accuracy. It was error to refuse them.
The accident happened on February 13, 1902. The contention for the plaintiff is that Soszynski was thrown by the collision from the wagon seat and that he fell head foremost upon the pavement. According to the testimony of Dr. Szwajkart he treated the appellee’s intestate for the injuries received at the collision; that he again saw him in November, 1903, and that appellee’s intestate then had an enormous swelling under the left maxillary bone; that the left jaw was much larger than its natural size; that the swelling involved parts from the temple to the clavicle; that he ordered hot applications for that part of the face, and suggested that he go to the hospital.
Dr. Laibe testified that he first knew appellee’s intestate in November 1903, at St. Mary’s Hospital, and describes the conditions which he found; that he opened the abcess which he found and took out several ounces of pus, and removed a small spiricula of bone. Appellee’s intestate testified that the third day after this the doctor took out a piece of dead bone from his jaw; that he was operated upon twice; that the "left side of his neck was stiff where it was cut and that he could not wear a collar. Upon these facts it was contended that by the fall a splinter of bone was broken, off the angle of Ms jaw in- February 1902, and that this caused the abcess in November, 1903.
Appellant contended on the other hand that if the fall received in February, 1902, had splintered a piece of bone from the jaw, an abcess would have developed, if at all, within a few weeks after the accident, and that the long time which intervened between the accident and the development of the abcess precluded the possibility of the injury received in the accident being the cause of the abcess. This contention is based in part upon the testimony of the above named doctors in their cross-examinations, and the testimony of Dr. Hall, called by appellant. Thus, the record shows, it was a sharply contested question in the case whether the accident, wMch happened in February, 1902, was the cause of the abcess which developed in November, 1903.
During the examination of Dr. Laibe by counsel for plaintiff the following occurred:
“Q. Doctor, suppose that the patient upon whom you then performed the operation had, on the 13th day of February, 1902, been thrown from a wagon, an ordinary coal wagon, head foremost, on the left side on to a street paved with granite, would that fall, in your opinion, at that date, create the condition which you found in November, 19031
Mr. Miller: That I object to, as being incompetent for the doctor to state. It is a question for the jury to decide.
Mr. King: No, the doctor depends on Ms knowledge.
The Court: The objection is overruled.”
To which ruling of the court, the defendant by its ‘counsel, then and there duly excepted.
“A. A traumatism at that time would, in all probability, produce the. conditions as found at that late date.
Mr. Miller: I move to strike out the answer, on the ground that it is incompetent for the doctor to state. The statement that it would produce this condition is for the jury to decide. The doctor’s answer usurps the functions of the jury.
The Court: The motion is overruled.”
To this ruling of the court the defendant duly excepted.
In our opinion the objection to the testimony should have been sustained. The court permitted the witness to swear to cause and effect. The witness was permitted to give his opinion upon a vital fact in the case which it was the province of the jury to determine from the evidence. He was competent to state what effects might result from the fall, but whether the effects described did result from the fall or were produced by some other cause or causes was a question for the jury. The question here presented has been so fully discussed in I. C. R. R. Co. v. Smith, 208 Ill. 608; City of Chicago v. Powers, 117 Ill. App. 453; Chicago City Ry. Co. v. Sugar, 117 Ill. App. 578; Muldowney v. I. C. Ry. Co., 36 Ia. 462; City of Chicago v. McGiven, 78 Ill. 347; Ferguson v. Hubbell, 97 N. Y. 507; C. & A. R. R. Co. v. S. & N. W. R. R. Co., 67 Ill. 142; Nat. Gas L. & F. Co. v. Miethke, 35 Ill. App. 629; Noonan v. The State, 55 Wis. 258; and Knoll v. The State, 55 Wis. 249, that we can add nothing by way of elucidation.
For the errors indicated the judgment is reversed and the cause remanded.
Reversed and remanded.