140 Ill. 525 | Ill. | 1892
delivered the opinion of the Court:
It is contended on behalf of appellant, that a material part of the allegation in the declaration is, that the appellee was in the act of removing the hand-car when the freight car was switched upon him, and that the evidence in the record fails to show that this was the fact. As we understand the record, there is evidence tending to prove that the freight car causing the damage which is the subject of the litigation, was “kicked,” as it is termed by the witnesses, on to the track designated No. 1, after appellee began, with the aid of Schielcke, to remove the hand-car from the main track to the track designated No. 1, and that is sufficient for the present question. The weight of the evidence was purely for the jury to determine.
But waiving this, the gist of the allegation in the declaration is, that while appellee, who was in appellant’s employ, was removing a hand-car from one track to another, to avoid •an approaching train, appellant negligently caused a freight ear to be switched and run against the hand-car which appellee was removing, and thereby wounded appellee. It is immaterial when the act of causation was begun,—it is sufficient if its force was continued to and it in fact did the damage to recover for which the suit is brought. There is no averment in the declaration when the negligent act began, nor was ■it necessary that there should have been such an averment. In legal contemplation the freight car was caused to be moved by appellant during every moment of time after the car was put in motion by it, and the movement of the car at the moment it struck the hand-car was therefore as certainly caused by appellant as was its first movement.
Counsel contend that “kicking” a car upon a track, where there is no public crossing, is .not, of itself, alone, sufficient proof of negligence. That may be conceded to be true. The ■question here is not what is sufficient proof of negligence. 'The only inquiry is, did the proof tend to prove negligence, and we have no hesitation in saying that putting in motion a-car, where men are known to be or where it is known they may be passing, without a brakeman upon it, and without, any other means of controlling its momentum, has a tendency to prove negligence. Whether negligence is, in fact, here-proved, is not within our province to inquire. Lake Shore and Michigan Southern Railway Co. v. Parker, 131 Ill. 557; City of Chicago v. McLean, 133 id. 148.
The first instruction given at the instance of appellee is as follows:
“1. The jury are instructed that if, under the evidence and under the instructions of the court, they find the defendant .guilty as alleged in the declaration, then, in estimating or assessing the plaintiff’s damages, the jury should take into-consideration the personal injury sustained by the plaintiff,, if any is proven, in consequence of the injury in question; also, the pain and suffering undergone by him in consequence-of his injuries, if any are proved, and any permanent injury ■sustained by the plaintiff, if the jury believe, from the evidence, that the plaintiff has sustained such permanent injury ‘in consequence of the accident in question, and such damages, if any, present or future, which the jury believe, from the evidence, are proven to be the necessary result of the injury complained of.”
Counsel for appellant contend that this was erroneous, in that it directs the jury to assess double damages. We are unable to concur in this construction. While the instruction is not to be commended as a model, we think it improbable ■that the jury could have understood the last clause otherwise than as stating the general rule applicable to all damages, as w'ell those arising from the injuries previously alluded to as those arising from any other source, for which a recovery ¡might be had in this case, and, understanding that clause in 'that sense, the instruction is not seriously objectionable, and the jury could not have been misled by it.
The instructions asked by appellant and refused by the court, of which complaint is made, were as to the effect of certain evidence on contested questions of fact, and they were properly refused for that reason.
The judgment is affirmed.
Judgment affirmed.
