99 Ill. App. 143 | Ill. App. Ct. | 1901
delivered the opinion of the court.
At the trial there was evidence tending to show that appellee was under the influence of liquor at the time she fell upon the sidewalk, but it was not such that we can say that therefore the jury should have found her guilty of contributory negligence which occasioned the fall.
Being at the time of the trial insane, and consequently unable to testify, it was proper upon the part of the plaintiff to introduce evidence as to her habits, tending to show that at the time of the injury she was probably exercising ordinary care.
We think that the rule applied in cases where injured persons have died since the accident is applicable to one whose mental condition is such that testimony from him or her is not obtainable.
She was adjudged insane on the 25th of January, 1900. The answers of the jury under the head of family history contains the following: “Previous attack. First time
she was ever affected. Assigned cause, womb trouble. Present attack started three weeks ago.” The verdict declares that her disease is of three weeks’ duration; that the cause is unknown. She was ordered to be confined at Kankakee and was there at the time of the trial.
Under the evidence there is a good deal of doubt as to whether the injury to her was permanent, or her insanity caused thereby.
The case was tried upon the part of the plaintiff upon the theory that her insanity is permanent. Under the circumstances developed by the evidence we regard the judgment of $9,000 as excessive. The action brought was not for a solatium to her husband or other kin, but for damage by her sustained.
If the husband has sustained damages by reason of the injury to his wife they can not be recovered in this action.
If the plaintiff shall within ten days remit from the judgment all in excess of $5,000 it will be affirmed for that sum, otherwise it will be reversed and the cause remanded. Affirmed on remittitur.
