89 Ill. App. 1 | Ill. App. Ct. | 1900
delivered the opinion of the court.
Appellant, at the close of appellee’s testimony, and also after all the evidence was in, moved the court to instruct the jury to find for defendant. The court refused the motion. In this there was no error.
A case was presented that required the findings of a jury.
It is urged as error that appellee was allowed to prove the cautious habits and character of the deceased. When appellee closed his case, it did not appear that there was any eye-witness to the accident.
It was not, then, error to receive evidence of his habits as to being cautious and prudent. In the absence-of direct proof, ordinary care may be inferred from such proof- Mo. Furnace Co. v. Abend, 107 Ill. 44; C., R. I. & P. R. R. v. Clark, 108 Ill. 113; T., St. L. & K. C. R. R. v. Bailey, 145 Ill. 159.
Henry Bohm, a witness for appellant, testified that he saw the deceased pass his house, and in a minute or two he heard the train whistle for the crossing; that “ from where he passed my house to the Wolf crossing, I guess it would be close to a quarter—not quite a quarter of a mile; ” that it was between a sleet and a rain, and that the young man had an umbrella over his head. He was asked to tell the jury how he was driving, with reference to speed. The question was objected to, the objection sustained, and appellant excepted. We think the witness should have been allowed to answer this question. Under the condition of the weather, the situation of the deceased, holding an umbrella with one hand and driving a span of mules that are shown by the evidence to be afraid of moving trains, his knowledge of the dangerous character of the crossing he was approaching, and that a regular train was due about that time, the answer might have thrown some light upon the issue of ordinary care on the part of the deceased. While it might not have had much weight in showing how he was driving at the crossing, to prove how fast he was driving a quarter of a mile from the crossing, still, under the circumstances, it might have thrown some light upon' this issue. If it would have done so, the evidence would have been competent. The relevancy of testimony is for the court to decide; the weight to be given to it, is for the jury.
For the same reason the court should have allowed the witness Dan Echols to answer the question at what points upon the highway between Bohm’s house and the crossing he could see a train approaching from the south. It was not objectionable upon the ground that it necessarily called for an opinion. Whether one can see a train from a given position, may call for an opinion if the person asked has never seen a train from such position, and is not entirely familiar with the situation. But if he has under such conditions seen a train, or is so familiar with the surroundings as to know that a train can be seen, his statement is a statement of fact and not an opinion. Ill. C. R. R. Co. v. Swisher, 53 Ill. App. 411; C. & A. R. R. Co. v. Legg, 32 Ill. App. 218; Wharton’s Law of Ev., Vol. 1, Secs. 570-571.
It was clearly pertinent to show that the deceased, riding in a sleigh, carrying an open umbrella in one hand, and approaching a dangerous crossing at a time when a train was due, and driving a span of mules- that were afraid of cars and inclined to run away, could, by looking, have seen the train at some distance from the crossing. It was for the jury to say whether a failure to look for a train under such circumstances tended to prove want of ordinary care, and the ability to see the train ivas a necessary element in passing upon the question.
Instruction No. 1 for appellee was not pertinent to the case. The safe crossings required by statute refer to track crossings and the approaches thereto on the highway. There is no allegation and no evidence to show that either the crossing or its approaches were unsafe.
The third instruction for appellee states a general proposition of law, which was not disputed, or in any way called in question. While such general propositions, stated in instructions, may not alone be cause for reversal in all cases, the giving of them should be avoided as serving no useful purpose, and as tending to direct attention of the jury to issues not in controversy.
The same objection applies to the sixth instruction.
Appellee’s thirteenth instruction is as follows:
“ If the jury believe from a preponderance of the evidence that the deceased, James Perry Moss, was a careful, cautious man at the time, and immediately preceding the alleged injury to him, then you have a right to consider this evidence, with all the evidence in the case, as to whether the deceased was using such due care and caution as an ordinarily prudent man would have used under like circumstances at the time of the alleged injury.”
It is said in this opinion, supra, that it was not error to admit evidence of the cautious habits of deceased, there being no testimony, when such evidence was offered, that there was any eye witness of the occurrence. Appellant, however, introduced a witness, whose testimony was not contradicted, who saw what occurred, and also witnesses who testified as to the deceased’s situation and surroundings in the sleigh, and his manner of driving at points not far distant from the crossing.
T. W. Bell, the engineer of the train, testifies that he saw deceased “come driving on the crossing. He was driving a span of mules about as fast as he could make them go. He was coming in a trot. I was looking right at him.” This was an eye witness of the immediate circumstances of the collision. After the introduction of this evidence by appellant, there was no motion to strike out the testimony relating to the cautious habits of the deceased.
While this left the testimony of the character of the deceased for ca,ution and prudence still before the jury, the fact that there was an eye witness of the occurrence made
such evidence incompetent. It was, therefore, error to instruct the jury that if they believed from the evidence that the deceased was “ a careful and cautious man at the time of the alleged injur)7,” that they had a right to consider this in connection with the other evidence in the case.
Judgment reversed and cause remanded.