| Ill. App. Ct. | Nov 16, 1898
Lead Opinion
delivered the opinion of the court.
Twenty-four errors are assigned by appellant, but so far as argued they are in substance, viz.:
Pirst, the verdict is not sustained by the evidence; second, improper evidence was admitted; third, proper evidence was excluded; fourth, the court made improper remarks in presence of the jury; fifth, plaintiff’s attorney was disrespectful to defendant’s witnesses; sixth, plaintiff’s attorney asked improper questions on cross-examination; seventh, plaintiff’s attorney made improper remarks to the jury in his argument; eighth, it wTas error to sustain demurrer to plea of statute of limitations; ninth, plaintiff’s instruction was erroneous; tenth, the verdict is excessive; eleventh, the court erred in refusing to consider the affidavit of W. Gr. Eankin and the oral testimony of a juror offered by appellant on motion for new trial.
The evidence in the record and as abstracted is very voluminous, and a review of it would unnecessarily extend this opinion. It seems sufficient to say that after a careful and critical reading of all the evidence in the light of counsel’s argument, we have been unable to reach the conclusion that .the verdict is manifestly against the weight of the evidence, and that being so, we should not disturb the verdict. There were only three witnesses to the accident—appellee, her husband and John A. Noonan. The evidence of appellee and her husband does not in all points agree, and does in some respects conflict with their evidence on the first trial, but we are of opinion that it supports the allegations of due care of appellee, and that appellant did not stop its train a reasonable time to allow her to alight, but caused the train to be started and moved, by means of which appellee was thrown from the train and injured, also the allegation that before the train had remained standing or stopped a reasonable time, the defendant then and there carelessly and negligently caused the said train to be started and moved forward, etc. Mr. Noonan’s evidence conflicted with their version of how the injury occurred, and it was for the jury to pass upon their credibility. We can not say the jury were manifestly wrong.
As to the second and third points, the admitting of improper and the exclusion of proper evidence, there may be some question as to the correctness of some of the court’s rulings; but even if, strictly speaking, they were erroneous, they were not so prejudicial as to justify us in awarding a new trial.
4th. During the trial, while one of defendant’s witnesses, called as an expert with reference to the operation of railway trains, was being cross-examined at considerable length, the court, apparently being wearied by the length and wide range of counsel’s cross-examination, addressing counsel, remarked, “ Judge, it looks to me that you are going into the mechanism of railways. The only question in this case is whether this lady had time to get off this train or not.”
Also, after the evidence was closed and plaintiff’s attorney was making the opening argument to the jury, he commenced to comment upon a change in the ad damnum after the first trial, to which defendant’s counsel objected. The court ruled that the remarks of counsel were improper, and in the colloquy between court and counsel, the court directed counsel to comment upon the ad darnmum as then laid, and said, addressing counsel, “ but as to what occurred on the trial of another case; or damages laid there, you have got the limit here; the jury can find whatever they want, but not exceeding the ad damnum; it would be error to let in anything else.”
These remarks of the court were certainly improper and should not have been made; but inasmuch as they were addressed to counsel in the hurry and excitement of trial, and not to the jury, and because of the subsequent instructions of the court, we are inclined to the view that appellant was not prejudiced thereby. It does not appear affirmatively that the jury heard the court’s remarks. O’Hara v. King, 52 Ill. 308; Beasley v. People, 89 Ill. 580; C., P. & St. L. Ry. Co. v. Blume, 137 Ill. 452.
The remarks of the court, not being addressed to the jury, could not be considered as an instruction to them, and was not, therefore, a violation of the statute requiring instructions to be in writing. The court gave all instructions asked by appellant, twenty-four in number, covering nine printed pages of the abstract, in nine of which the jury are told, in varying forms, but in substance, that before the plaintiff could recover she must show by a preponderance of the evidence that she was in the exercise of due care or ordinary care for her own safety, and that if her injury was the result of negligence on her part, even though the negligence of defendant as charged was established, still she could not recover. By the eighteenth instruction for the defendant, the jury are told that “ while the court does not intend to intimate to you how you shall find the facts in this case, still the court instructs you that under your oaths and under the'law, it is your sworn duty to find the facts in accordance with the evidence introduced in the trial of this cause and from no other source.”
With these instructions before the jury in their deliberations, even if the jury heard the court’s remarks, we can not believe they were misled by them, being addressed to counsel during the progress of the trial.
As to the fifth, sixth and seventh points, the alleged disrespectful treatment of defendant’s witnesses, the asking of improper questions on cross-examination, and of improper remarks to the jury in argument, it seems unnecessary to discuss them in detail. The remarks of counsel complained of were improper, and the court should not have stopped with sustaining the objection of defendant’s attorney, but, by reprimand at least, prevented its repetition.
The questions asked on cross-examination were not improper. The remarks of counsel in argument to the jury were not of so serious a nature as to prejudice appellant, and when objected to, although in one instance the court overruled the objection, the remarks were stated by counsel to be withdrawn by him, and he further said in that connection, that if he said anything in the argument which was not in the evidence, he wished the jury to disregard it.
8th. The additional counts of the declaration do not state new causes of action, as claimed by appellant, but are merely a restatement, in different language, of the case made by the original count. The gist of the negligence charged in the original declaration is found in the allegation that when plaintiff was about to alight from the train “the defendant improperly and negligently caused the said train to be suddenly and violently started and moved,” while in the first additional count it is that defendant did not stop the train a reasonable time, and while the plaintiff was about to alight from the train “ the defendant improperly, carelessly and negligently, and before the train had been then and there stopped such reasonable time, caused the said train to be started and moved; ” the second additional count is the same in substance as the first, with the further charcre that “ the defendant at the same time did not regard its duty to erect a platform for the plaintiff then and there to alight upon, elevated a suitable distance above the ground; ” the third additional count is the same in substance as the first, with the further charge that “ defendant carelessly and negligently neglected to provide any platform upon which plaintiff could alight.”
It will thus be seen, the negligent starting of the train is relied on in each of the counts as the cause for appellee’s being thrown down and injured, and it can make no difference that in the first count it was the suddenly and violently starting the train, while in the other counts it was starting the train too soon and before plaintiff had time to alight. Neither does it make a new cause of action because in the second and third additional counts there was coupled with the starting of the train the charge in one count as to a platform sufficiently.elevated, and in the other count that there Avas no platform. Swift v. Madden, 165 Ill. 45; N. C. R. Co. v. Monka, 107 Ill. 343; C. & A. R. R. Co. v. Henneberry, 153 Ill. 359; Harper v. I. C. R. R. Co., 74 Ill. App. 75; Secord-Hopkins Co. v. Lincoln, 173 Ill. 362; Eylenfeldt v. Ill. S. Co., 165 Ill. 185" date_filed="1896-11-09" court="Ill." case_name="Eylenfeldt v. Illinois Steel Co.">165 Ill. 185, and cases cited.
In the latter case the court say: “ When the amendment by an additional count is introduced merely to restate in a different form the same cause of. action set up in the declaration as originally drawn, and not to present a neAv and different cause of action, the rule does not apply, and a plea ■of the statute of limitations to such neAv count can not be sustained.”
In the Harper case, supra, the court say : “ Plaintiff could properly file new counts amplifying and enlarging upon the manner in Avhich the cars were driven together, and could give the details of their negligent management in additional counts," without making them obnoxious to the statute of limitations.”
9th. Plaintiff’s instruction which it is claimed Avas erroneous is, viz.:
“ If the jury find the issues for the plaintiff, then the plaintiff is entitled to recover such actual damage as the evidence may show she has sustained as the direct or approximate result of such injury, taking into consideration her loss of time, her pain and suffering, her necessary and reasonable expenses in medical and surgical aid so far as the same may appear from the evidence in this case; and if the jury find from the evidence that the said injury is permanent and incurable, they may also take this into consideration in assessing the plaintiff’s damages.”
Nineteen different reasons are stated by appellant’s counsel Avhy this instruction is erroneous. It could serve no useful purpose to discuss them in detail. We can not, hoAvever, commend the course of counsel in thus taxing his mental powers and imagination in endeavoring to point put so great a number of errors in one short instruction.
In C. & E. I. R. R. Co. v. Holland, 122 Ill. 470, an instruction almost identical with the one at bar in a case where the proof was of like facts, was approved by the Supreme Court, and we see no reason, under the evidence in this cause, considered in the light of the exhaustive and ingenious argument of counsel, why there was error in giving this instruction.
10th. The verdict is large, but after full consideration of the injuries sustained by appellee, as shown by the evidence, we are unable to arrive at the conclusion that the verdict is excessive or the result of passion or prejudice of the jury. Appellee was a healthy and vigorous woman before the accident; at the time of the trial fifty-four years of age; had for a long time kept boarders as a business, having at times a large number, doing very much of the work herself. As a result of the injury the evidence tends strongly to show that she had suffered greatly for four years; an ulcer on her right lung developed, which caused continual pain day and Right, cold chills, nausea and vomiting of pus or corruption as stated by appellee, about every two weeks; her arm was so injured she has been unable to use it, which injury the attending physician testified was permanent, and also that her condition as to the lung was critical; that an operation might obliterate the pus, but the chances were against her; that she was liable to have a hemorrhage at any time on account of the pus; that she was not able to do any work, and her condition had grown worse. Another physician testified that he thought her condition was beyond the reach of permanent relief, and that her injuries were permanent and fatal. This evidence was not, in our opinion, overcome or materially affected by defendant’s evidence.
11th. There was no error in the court’s refusing to consider, on the motion for a new trial, the affidavit of Eankin that there had appeared in the newspapers a statement to the effect that a verdict for §15,000 had been rendered at the former trial, nor was there error in refusing to hear the testimony of a juror to the effect that information reached the jury that on a former trial plaintiff recovered a verdict for $15,000, and that the former trial court did not consider that verdict excessive, but set it aside solely on the ground of improper conduct of one of the attorneys. If newspaper reports such as these of former trials of a case getting to a jury are sufficient ground for a new trial in a civil case in Chicago it would be almost impossible to sustain any verdict on a second trial. It was entirely proper for the court to refuse to listen to a juror’s testimony tending to impeach his own verdict. Sanitary Dis. v. Cullerton, 147 Ill. 389.
There being no reversible error in the record, the judgment is affirmed.
Dissenting Opinion
dissenting.
In this case the sum assessed by the jury as damages is large and the evidence is so conflicting that had a verdict been rendered for appellant it could not be set aside on the ground that it was contrary to the evidence. Such being the case, I can not concur in the view that the remarks of the court, excepted to by appellant’s counsel, did not create an impression on the minds of the jury prejudicial to the appellant, which affected their verdict. It must be admitted that the remarks of the court were of a character well calculated to produce on the minds of the jurors an impression unfavorable to the appellant, and it can not, in accordance with reason, be presumed that they did not produce the effect which they naturally tended to produce.
Neither can I concur in the view that the instructions, however favorable for appellant, removed the unfavorable impression produced by the remarks of the court. It can not be said with certainty that the instructions had that effect. It must, therefore, be admitted that they may not have had that effect. It has been held that the erroneous admission of evidence prejudicial to a party could not be cured by an instruction. Railroad Co. v. Winslow et al., 66 Ill. 219" date_filed="1872-09-15" court="Ill." case_name="Lafayette, Bloomington & Mississippi Railroad v. Winslow">66 Ill. 219; Fire Ins. Co. v. Rubin, 79 Id. 402.
To say in such a case as the • present that the remarks were made to counsel and were not in the form of an instruction to the jury is, in my judgment, a mere evasion, and does not touch the substance of the matter.
To be reversible error it is not necessary that the remarks should be addressed to the jury in the form of an instruction. Appellate Procedure, by Elliott, top p. 618; 1 Thompson on Trials, Secs. 218, 219; McIntosh v. McIntosh, 79 Mich. 198" date_filed="1890-01-17" court="Mich." case_name="McIntosh v. McIntosh">79 Mich. 198.
Judgments have been reversed on account of improper remarks made by counsel to the jury in argument. That improper remarks tending to influence the jury, made by the court in the presence and hearingof the jury, are likely to have much more influence than such remarks made by counsel, is too obvious to require argument.
To hold, in such a case as the present, that the remarks complained of were not so prejudicial to the appellant as to warrant a reversal of the judgment is, in my opinion, to establish a dangerous precedent.