94 Ill. 598 | Ill. | 1880
delivered the opinion of the Court:
6
From a careful examination of the evidence, we are satisfied the plaintiff was entitled to a verdict in her favor. There is nothing in the record tending to prove a want of ordinary care on her part, which could have contributed to her injury. It is, however, insisted there is an entire absence of proof of negligence on the part of defendant. This view of the case results from a misapprehension of the legal effect of the evidence introduced by the plaintiff. It was clearly the duty of defendant to provide means by which plaintiff could safely go from the boat to the wharf; and the fact that the stage-plank used for that purpose fell whilst plaintiff, in the exercise of due care, was walking over it, is prima facie evidence of negligence on the part of the defendant in the performance of that duty, and casts upon the defendant the burden of proving the falling of the plank was the result of an accident for which defendant was not responsible. This position is sustained by the ruling of this court in Pittsburg, Cincinnati and St. Louis Railway Co. v. Thompson, 56 Ill. 138, and of the Supreme Court of the United States in Railroad Co. v. Pollard, 22 Wall. 342, and in Stokes v. Saltonstall, 13 Peters, 181. Iu the last named case it is held that the upsetting of a stage coach, by which a passenger is injured, is prima facie evidence of negligence on the part of the driver, and casts upon the proprietor the burden of showing the driver was in every respect qualified, and acted with reasonable skill and the utmost caution.
When, therefore, in the case at bar, it is shown the plaintiff has been injured by the falling of the stage-plank, the burden is cast upon the defendant to show this was caused by an accident which, by the exercise of ordinary care on the part of defendant’s servants, could not have been avoided. It is true, the evidence tends to show the end of the boat was moved around by the wind, and this caused the stage-plank to fall; but it does not appear the boat was fastened to the wharf in any way, or that it could not have been so fastened as to have prevented its being moved by the wind. The evidence wholly fails to establish ordinary care on the part of the defendant to prevent the falling of the stage-plank.
The jury properly found the plea of release was not sustained. The evidence shows that plaintiff, at the time of the execution of the receipt, was an illiterate woman, unable to read or write, and that it was obtained from her during her illness consequent upon her injury, and by the physician employed by defendant to attend her, and in the absence of any of her friends to whom she could look for advice. The physician explained to her that the officers of the company had expended the amount of money named in the receipt for her benefit, and wanted something to show the company what the money had been expended for, and this was all the explanation he made. Taking into consideration all these facts, and especially the fact that the receipt was obtained by the attending physician, we are of opinion it can not be held binding upon her.
Inasmuch as, upon the evidence, the jury would not have been justified in rendering a verdict for the defendant, it is only necessary for us to consider such of the alleged erroneous rulings of the court below as may have affected the amount of the damages awarded the plaintiff. The only rulings of this character of which complaint is made, are the giving by the court below of the plaintiff’s third, fifth and seventh instructions, and the refusal to permit defendant to introduce evidence as to the pecuniary circumstances of plaintiff.
It is insisted that, as the declaration did not allege plaintiff had suffered a permanent injury, it was error to give the third and seventh instructions, which authorized the jury to award the plaintiff damages for such permanent injury as the evidence showed she had sustained. This position is untenable. The,declaration expressly alleges that the plaintiff “then and there became and was sick, lame and disordered, and so remained for a long time, to-wit: hitherto,” etc. The permanency of plaintiff’s injury was merely evidence to be considered by the jury in determining the severity of the plaintiff’s sickness, lameness and disorder, and the rules of pleading do not require the plaintiff to set forth in his declaration the evidence upon which he relies.
The objection made to the fifth instruction is, that it authorized the awarding of exemplary damages if the evidence showed wilful negligence on the part of the defendant, and that there was no evidence on which to base the instruction. Conceding this instruction should not have been given, still, the damages awarded the plaintiff are not so large as to justify us in the belief the jury gave any exemplary damages, and we would not reverse the judgment for this error, which did no harm.
It is also insisted the court below erred in refusing to admit evidence offered by the defendant as to the pecuniary circumstances of the plaintiff We know of no rule of law, and have been referred to none by counsél, holding that in an action of this character it is competent to show the financial standing of the plaintiff The mere fact that plaintiff in this case made some statements, without objection by defendant, as to her pecuniary, circumstances, does not require the court, upon the application of defendant, to try immaterial issues.
There is no substantial error in this record, and the judgment of the court below must therefore be affirmed.
Judgment affirmed.
