240 Ill. 602 | Ill. | 1909
delivered the opinion of the court:
In determining whether a verdict should have been directed we will state the facts as they are made to appear by the evidence most favorable to appellee. A public sale of horses was being conducted in the auction ring at the time he received his injuries and he was there for the purpose of buying. Under the circumstances he was not a mere licensee but was present by the implied invitation of appellant Schloeman, who was making the sale. (Pauckner v. Wakem, 231 Ill. 276.) He was injured by a blind horse that was being rapidly led and driven about the ring under the whip. The only control exercised over the horse was by leading him by a halter. Appellants knew the horse was blind; appellee did not. No public announcement was made of the fact that he was blind. It is insisted that appellee, as a matter of law, was guilt)'- of contributory negligence in standing upon the ground at one side of the ring instead of taking one of the seats which extended along two sides of the ring and which were on a higher level than the ground in the ring. If appellee had known the horse was blind there would be great force in this position, but he was not aware of that fact. If the animal had been able to see it is not probable the accident would have occurred. We think the question whether appellee was guilty of contributory negligence was one of fact and not of law. The motion for a directed verdict, made at the close of all the evidence, was properly denied.
The man who was leading the horse at the time he was being whipped about the ring was an employee of Schloeman, named Higgins. As the horses were brought into the ring for sale they were led in by a man named Anderson. Evidence was admitted, over objection, from which it appears that Anderson told Higgins as he was delivering the horse to him that the horse was blind and to look out or it would step on him, and it is contended that this evidence was not competent. . It was urged by appellee, among other things, that the manner in which Higgins handled the horse in the ring was negligent in view of the fact that the horse was blind. Under these circumstances it was material to show that Higgins had knowledge of the blindness. We think the evidence was properly admitted for that purpose.
One of the controverted questions of fact was whether, on the day of this injury, a sign was displayed in the ring warning people not to stand in the ring and admonishing them that if they did so it was at their own risk. Appellants asked an instruction to the effect that if this sign was displayed conspicuously plaintiff could not recover. That instruction the court modified by adding, as an additional element necessary to bar the right of plaintiff to recover, the fact “that plaintiff knew of said sign.” Appellants complain of the modification. If this sign was, in fact, there, its effect upon the right of the plaintiff was not of the character indicated by this instruction, either in its original or modified form. The buyers could not inspect an animal in any satisfactory manner except they were in the ring. Horses were sold at the rate of one a minute. In that time the horse was led rapidly around the ring one or more times, examined by the bidders, offered for sale by the auctioneer, bids were called for, made and received, the horse was knocked down to the purchaser and led away. It was necessary for the buyers to be on the ground to examine the horses. Unless they stayed there between the time one horse was sold and bids were asked upon the next they would be without opportunity to examine the horse before the bidding'began. The appellants, by the course they pursued in making the sales, made it necessary for the buyers to be on the ground in the ring. The sign may have been posted, but if it was, the conduct of appellants was an invitation for bidders to disregard it. Under these circumstances the right of appellee to recover would not necessarily be barred by his knowledge that the sign in question was posted. The instruction should not have been given, either as asked or modified, for the reason that in either form it was more favorable to the appellants than it should have been.
Complaint is also made of the refusal of two instructions which stated to the jury that the plaintiff could not recover if he had been guilty of contributory negligence. This subject was fully covered by other instructions given.
Complaint is also made of the refusal of another instruction which was based on the theory that appellee was a mere licensee. That instruction was properly refused for reasons already indicated.
It is finally contended that the judgment is excessive. As we have so often said, this question is not open for consideration in this court.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
