delivered the opinion of the court:
This wаs an action on the case commenced in the superior court of Cook county by the appellee, a minor, by her next friend, to recover damages alleged to have been sustained by her on August 6, 1904, in consequence of the negligence of the appellant while she was a passenger upon one of its street cars, in the city of .Chicago.
Thе declaration contained one count, which was, in part, as follows: “For that whereas, on and before, to-wit, the 6th day of August, A. D. 1904, at the city of Chicago, county of Cook and State of Illinois, the defendant was in the possession of and using a certain line of street railway, commonly known as the South Halsted street line, of said defendant, running along, upon and, over Halsted strеet, Clark street and divers other streets in the said city of Chicago, together with' certain cars thereunto belonging and used for the conveyance of passengers for a certain reward to the defendant in that behalf, and operated by means of electricity. And the plaintiff avers that at the time aforesaid she was a passenger on one of the said сars of the said defendant, which said car was then and there being run in a southern direction along, upon and over Clark street, at or near the intersection of Clark street and Fifteenth street. And the plaintiff further avers that it then and thqre became and was the duty of the said defendant to have used the highest degree of care to safely carry the plaintiff, so being a passenger, as aforesaid, in and on said car aforesaid, along, upon and over the route traveled by the same, yet the defendant did not regard its duty in that behalf and did not use due and proper care that the plaintiff should be safely carried in and on said car aforesaid, but neglected so to do, and by reason thereof afterwards, and while the plaintiff was a passenger on said car aforesaid and in the exercise of all due care and caution for her own safety, at or near a certain point in said city, county and State, to-wit, the intersection of Clark street and Fifteenth street, the said car aforesaid collided with a certain other car of the said defendant, by means and in consequence wherеof the plaintiff was thrown with great force and violence upon and against a certain seat of said Flalsted street car, and by means whereof the plaintiff’s back and head were severely hurt, bruised, wounded and injured, and she was injured in and about the abdomen and in and about the spinal cord, and her back, head and hip were greatly contused, and she suffered sevеre nervous shock, and her mind became impaired and seriously injured, and was injured both internally and externally, and was otherwise greatly hurt, bruised, wounded and injured, and became therefrom sick, soré, lame and disordered, and will be sick, sore, lame and disordered the remainder of her life, during all of which time the plaintiff has suffered and will suffer great pain, and has been prevented from attending to and transacting her usual and ordinary affairs and duties, and has lost and will lose divers great gains and profits which she otherwise would have made and acquired, and also by means of the premises was then obliged to and became obligated to pay, lay out and expend divers large sums of money, amounting to, to-wit, $500, in and about the endeavoring to be cured of her said hurts, bruisеs, wounds, injuries and contusions received as aforesaid, to the damage of the plaintiff in the sum of $25,000, and therefore she brings her suit.”
. The general issue was filed and a trial resulted in a verdict in favor of the appellee for the sum of $5000, upon which the trial court, after overruling motions for a new trial and in arrest of judgment, rendered judgment, which judgment has been affirmed by the Appellatе Court for the First District, and a further appeal has been prosecuted to this court.
The first contention made by appellant is that the declaration is not sufficient to support the judgment, and for that reason the court erred in overruling its motion in arrest of judgment. In McAndrews v. Chicago, Lake Shore and Eastern Railway Co.
It is said, however, that the declaration does not aver facts which show the cause of the .collision,—that is, whether it occurred through the negligence of the appellant or of a. . stranger. The declaration does show that the collisiоn took place between two cars of the appellant, upon one of which the appellee was a passenger, and all that was necessary for the appellee to do was to aver in her declaration a state of facts from which' the law would raise a duty and aver its breach. This was done by averring that the appellee wаs a passenger upon one of the appellant’s cars, and while she was such passenger the car upon which she was a passenger collided with another car of the appellant. (West Chicago Street Railroad Co. v. Martin, supra.) The appellee was not required to aver more facts than she was required to prove. The appеllee may not have known the cause of the collision, and in order to recover was not bound to prove its cause. If she had averred its cause she would have been required to prove the. same, and might have failed in the proof and therefore have been defeated. She therefore, under the law, had a right to stop with the averment and proof that she was a passenger upon one of appellant’s cars and that while she was such a passenger there was a collision between that car and another of appellant’s cars, and then to have rested and relied upon the presumption of negligence arising therefrom as a matter of law, from which state of facts the burden of proof would have been thrown upon the appellant to show that it was not legally responsible for the collision in which the appellee was injured, if it could. In Elgin, Aurora and Southern Traction Co. v. Wilson, supra, on page 51, the court said: “The doctrine to be deduced from the above cases is, that when one becomes a passenger on a car of a сommon carrier to be transported from one station on its line to another, and has paid a consideration therefor, the contract on the part of the carrier is to provide safe and sound cars, track and necessary appliances to carry the passenger to his or her destination without injury. Where such a passenger is injured by a collision, proof of the relation of passenger and carrier, of the collision and the injury, if no contributing negligence on the part of the passenger appears, makes a prima facie case for the resulting damages, and casts upon the' common carrier the onus of proving that the injury resulted from inevitable accident or from some cause аgainst which human prudence and foresight could not have provided.”
We are of the opinion, the declaration stated a good cause of action, especially when its sufficiency is challenged by a motion in arrest of judgment.
It is further contended that the court erred in admitting in evidence certain expert testimony offered upon the trial upon behalf оf the appellee. It was claimed that the appellee was suffering with paralysis as a result of the injury which she received, and she called as a witness on her behalf one Dr. Stephen W. Cox, who had examined the appellee on the day before he testified, to qualify himself as an expert witness, and who was permitted to testify, over the objection of thе appellant, that at the time of his examination of the. appellee she was nervous; that there was a twitching and jerking of her hands; that there was a slight drooping of her left leg or left foot as she allowed it to hang over a chair; that the toes of the left foot turned in more than those of her right foot; that the step with the left foot was not as strong as that with the right,— “nоt exactly a dragging but a suspicion of dragging;” that he tested the strength of her hands by taking hold of them with his hands and asking her to squeeze; that he noticed a difference in the strength of her hands; that one thumb was weaker than the other; that the examination was not made for the purpose of treating the appellee but that he might testify as a witness in her case; that he could not sаy positively whether the jerking and twitching which he observed were voluntary or involuntary; that his impression was that they were involuntary; that the muscles which produced the conditions observed by him were voluntary and under the control of the appellee.
The rule is well established in this State that the declarations of the injured party, in a case like this, when made as a part of the res gestee or to a physician during treatment or upon an examination prior to and without reference to the bringing of an action to recover damages for the injury complained of, may be introduced in evidence; (Illinois Central Railroad Co. v. Sutton,
The declarations of an injured party as to his physical condition, brought about as a result of injury, are self-serving, and, at the best, hearsay evidence. Statements, however, made by an injured party which form a part of the res gestee, or those made to his physician during treatment, constitute an exception to the general rule, and are admitted by reason of the fact that he will not be presumed to prevaricate at the very instant of his injury or while he is stating his physical condition to a physician from whom he expects and hopes to receive medical aid, nor will he be presumed to feign disease, pain or distress under those conditions in which he is ordinarily observed by strangers or his friends and neighbors. No suсh safeguards, however, surround him when he is being examined by an expert whom he has employed to examine him and to give evidence in his case which is about to be tried in court. To permit the injured party, while undergoing an examination by an expert in his employ, by jerks and twitches, by a pressure of his hand, by turning his toes in or by dragging one of his legs when walking, to thus make evidence for himself, and then tо permit his expert to go before the jury and bolster up and strengthen by his opinion the self-serving testimony thus manufactured by the injured party, would open up the door wide for the grossest fraud, which might work upon his adversary the most palpable injury. This character of self-serving testimony has been held incompetent by the Supreme Court of Michigan in McKormick v. City of West Bay City,
We have, however, examined this record- with a great deal of care, and are of the opinion that the error committed by the сourt in admitting the testimony of Dr. Cox in the ■ particulars pointed out should not reverse this cause. It clearly appears that the appellee was a passenger upon appellant’s car; that the car upon which she was a passenger, without fault on her part, collided with another of appellant’s cars through its negligence, and that she was injured in such collision; that prior to her injury she was . a strong, healthy girl; that immediately thereafter she was sick and was rendered subject to fits and other disorders, and that her mind became impaired. And that she was permanently injured from the effects of said collision there can be no reasonable doubt, unless the testimony of her father, her teachers, her minister, and numerous of her companions and neighbors, is to be disbelieved. Furthermore, Dr. Grady, who had treated the appellee, observed and testified to substantially all the conditions in the appellee testified to by Dr. Cox, without objection on the part of the appellant. The testimony of Dr. Cox was therefore corroborative and cumulative of facts and conditions which had been сlearly established by other competent evidence. In West Chicago Street Railroad Co. v. Maday,
In view, therefore, of this condition of the record the judgment of the Appellate Court will be' affirmed.
Judgment affirmed.