12 Ill. App. 286 | Ill. App. Ct. | 1883
Appellee recovered a judgment against appellants in the court below for alleged negligence in placing her son on an unsafe and dangerous platform of a horse power, to drive the horses, from which he fell and received the injury complained of.
Humerous objections are urged in argument against the rulings of the trial court.
First. It is claimed the court erred in sustaining appellee’s objection to the following question propounded to two of appellant’s witnesses, Win. Cisco and W. A. Jones, and refusing to permit them to answer the same:
“ From your experience in running and handling horse powers like this one, I will ask you to state whether in your opinion the platform in this power was a safe or an unsafe place for a boy of ordinary intelligence and prudence, twelve to thirteen years of age, to work upon in driving two horses hitched thereto? ”
These witnesses had testified that they had been engaged.in using horse powers of this kind for at least fourteen years and that they had had a large experience in the use of such machines. This knowledge of the business entitled the witnesses to testify as experts. They were familiar with the subject and possessed knowledge in reference thereto not possessed by the jury or persons in general. It is not necessary that a specialty, to enable one acquainted with it to be examined as an expert, should involve abstruse questions of science. If the witness is possessed of a special knowledge of a subject of which the jury arq not able to judge for themselves, he is competent to testify, and it is not a valid objection to his evidence that the -question involves the point at issue to be decided by the jury. Wharton on Evidence, Sec. 444. Transportation Co. v. Hope, 5 Otto. 299; Moulton v. McOwen, 103 Mass. 587.
Again, appellee’s witnesses, Lucky and Markland had been permitted to testify in her behalf that the platfqrm “was not large enough to be safe for a boy of that age to sit upon and drive,” and the evidence offered and excluded was of the same character and fairly tended to rebut the evidence of these witnesses.
Second. It is contended that the court erred in giving instructions in behalf of appellee. The first, seventh, ninth, tenth and twelfth tell the jury as a matter of law, that certain facts set forth in each of said instructions per se constitute negligence on the part of appellants.
In this the court invaded the province of the jury. Negligence, which is the gist of the action, is a.question of fact to be proved like any other material averment. The court should define negligence and tell the jury what it is in law, and leave them to find the facts and determine whether or not they support the charge under such definition. All inferences arising from the existence of facts proved should be drawn by the jury and not by the court. L. E. & W. Ry. Co. v. Zoffinger, 10 Bradwell, 253; Pennsylvania Co. v. Conlan, 101 Ill. 93.
The third and seventh instructions are faulty for assuming that appellants were guilty of negligence in putting the boy on the platform to drive. This material fact should have been submitted to the jury and it was error in the court to assume it in the instructions. City of Chicago v. Bixby, 84 Ill. 82; M. S. & N. I. R. R. Co. v. Shelton, 66 Ill. 424; C. & A. R. R. Co. v. Bloomfield, 7 Bradwell, 211.
The first, third, seventh, eighth, tenth, eleventh and twelfth instructions each inform the jury that if they find for the plaintiff they shall “ assess her damages at such sum as they may believe from the evidence she is entitled to receive.” If the plaintiff was entitled to recover, it was to the extent of the pecuniary damages she had sustained only. The act was not wanton or willful and no evidence before the jury authorizes punitive damages to be awarded by the jury.
Under such circumstances the instructions should have limited her right of recovery to such damages as she had sustained, instead of allowing them to give her such an amount as they thought, from the evidence, she was entitled to. Waldron v. Marcier, 82 Ill. 550. The judgment is reversed and the cause remanded.
Eeversed and remanded.
