145 Ill. 551 | Ill. | 1893
delivered the opinion of the Court:
Upon looking into this record, to determine whether the instructions were substantially accurate as applied to the facts, we are led to agree with the Appellate Court that if: “Under the evidence shown in this record, had there been a judgment for the defendant, it would have been our duty to set it aside.” Counsel have filed in this court their Appellate Court briefs, containing a discussion of the questions of fact which are eliminated by the judgment of that court. Numerous objections are made to the instructions given and to the ruling of the court in admission of testimony, the more important of which will be considered.
I. It is insisted, the court erred in giving appellee’s instruction in respect of the measure of damages, which is as follows:
“In estimating the plaintiff’s damages, if the jury find for the plaintiff, it is proper for the jury to estimate the effect of the injury in the future upon the plaintiff’s health, if any, as well as the effect it has had upon him already, and the bodily pain and suffering, if any, endured by him, including the necessary expenses and all damages, present and prospective, which can be treated as a necessary result to the injury, if any, inflicted by the defendant • upon the plaintiff.”
The objection is, that the jury are allowed, in case they found for appellee, to award him damage for “necessary expenses,” in and about being healed, etc. The evidence showed, that appellee had an arm broken and was otherwise injured; that a physician attended him in setting the bone of the arm, for which he was paid. And also, that ¿mother physician attended him during his illness following the injury. But there is no evidence as to the amount paid, or what would be a reasonable charge for the services rendered. We are of opinion that it was error to give the instruction in the absence of all proof tending to show the proximate amount or value of said services. Shear. & Red. on Neg., 759; Reed v. R. R. Co., 57 la. 23; Duke v. R. R. Co., 99 Mo. 347; Eckerd v. R. R. Co., 70 Ia. 353; R. R. Co. v. Frelka, 9 Brad. 605; Joliet v. Henry, 11 id. 154; C., B. & Q. R. R. Co. v. Hale, 83 Ill. 360.
But we are of opinion also, that while the instruction standing alone was erroneous, the giving of it in connection with the series of instructions given, was not prejudical error. By repeated instructions the jury were told, that their findings must be from the evidence; and in an instruction, given on behalf of appellant, the jury were told that, if they should find for the plaintiff, no exemplary or punitive damages “can be allowed.” “All that the jury would have a right to consider would be simply compensatory damages, * * * * that is to say, the damages should be purely compensatory and the basis for estimating it must be data appearing in the evidence, and not mere conjecture.” It was the duty of the jury to consider the instructions as a whole, and give due and proper weight to each of them, and it is presumed they did so. (2 Thomp. on Trials, sec. 2407.) If the instructions, when construed together, present the law with substantial accuracy to the jury, and the objectionable instruction is so qualified by others that it is not calculated to mislead them, it will ordinarily afford no ground for reversing the judgment. Id.; Spies v. The People, 122 Ill. 245; T., W. & W. Ry. Co. v. Ingraham, 77 id. 309; Kendall v. Brown, 86 id. 387; Skiles v. Caruthers, 88 id. 458; C. & E. I. R. R. Co. v. Hines, 132 id. 169.
Without proof of the value of the medical attendance, medicine, etc., nominal damages only could have been awarded; that is, no data would have been furnished by the evidence for awarding other than a nominal sum. There is nothing in this record to indicate that the jury were mis-o led, or gave damages other than such as were purely compensatory, having for their basis data appearing in the evidence, or that they were led into the field of conjecture.
II. It is also insisted that the court erred in giving the following instruction:
“If the jury believe from the evidence, that some person not in the employment of the defendant company rung the bell which started the train at the time in question, still that fact will not exempt the defendant company from liability in this case; provided, the jury believe from the evidence that the conductor could, by use of due care and diligence, have countermanded the unauthorized signal for starting the train in time to have prevented any injury to plaintiff, if he, the conductor, had exercised due care and diligence in the discharge of his duties; and, provided the jury believe from the evidence the plaintiff at the time in question was in the exercise of reasonable care and diligence for his own safety.”
The point made is, that the instruction “failed to submit to the jury the question as to whether or not reasonable care on the part of the conductor required that he should have countermanded the signal, even if he could have done so in time to have prevented the injury to the plaintiff.” And that, as a matter of law, the fact that the conductor might, “by the exercise of due care and diligence, have countermanded the signal,” even if the conductor did not know, and had no reasonable ground to believe, that anyone was attempting to get upon the car, would make appellant liable, although the signal had been given by a stranger. We see no objection to the instruction. It was the duty of appellant to stop its car a sufficient length of time to enable appellee to get fully and safely on the same. City Ry. Co. v. Mumford, 97 Ill. 560; 2 Shear. & Red. on Reg., sec. 508; Thompson on Car. Pass., sec. 16; Dougherty v. Mo. Pac. Ry., 81 Mo. 330; C. & A. R. R. Co. v. Wilson, 63 Ill. 167; Chi. W. D. Ry. Co. v. Mills, 105 id. 63; C. & A. R. R. Co. v. Arnol, 144 Ill. 261. Carriers of passengers are held to the exercise of the utmost or highest degree of care, skill and diligence for the safety of the passenger that is consistent with the mode of conveyance employed. The car or train was in control of the conductor, and he was required to know, if by the exercise of due care, caution and diligence in the discharge of his duties he could know, whether any person was attempting to get on or off his train or car, before permitting the same to start in such manner as would be liable or likely to injure a person so getting on or off the same. It was a duty appellant owed to the public, to be discharged through its conductors or other agents whom it might select, to afford its passengers time and opportunity to board and depart from its cars in safety. The fact, therefore, if it be conceded that the signal for starting was given by an unauthorized person, would not exempt the railway company from liability, if the conductor or agents of the railway company in charge, by the exercise of due care and diligence, could have prevented the moving of the car, and thereby avoided the injury.
III. Objection is made to the ruling of the court in the introduction of testimony. Appellee was asked the question : “How long were you confined to bed on account of this injury?” To which he answered: “From the 15th of May to about the 1st of August.” And also the question: “Have you suffered any pain in consequence of the injury?” Which was answered in the affirmative. It is said: “These questions were improper, as calling for the opinion of the witness as to the cause of his being confined in bed, of his suffering pain,” etc. Appellee and others testified that his arm was broken, that he was otherwise injured, and that, following the accident, he had been confined to his bed. We are of opinion that there was no error in permitting the questions to be answered. Whether appellee suffered pain from a broken arm was a fact that required no expert skill to ascertain. Nor did it require expert knowledge or skill to determine the fact that appellee required help to put on his coat; of, that in consequence of his broken arm, his food had to be cut for him. True it is, as said by counsel, that the question for the jury to try was whether the changed physical condition of appellee was 6 ‘on account of” or “in consequence of” the injury complained of. It requiring no expert skill or scientific knowledge to determine the facts testified to by appellee, no error was committed in permitting him to answer the questions.
It is said, however, that it having been shown that appellee was aged and infirm, and to some extent a paralytic, the assumption that the confinement to his bed, the pain he suffered, and the like, resulted from the injury, invaded the province of the jury. It was competent for the appellee to testify to his condition resulting from the injury, and the effect produced by it. Wright v. Ft. Howard, 60 Wis. 122; Creed v. Hartman, 8 Bosw. 123.
Other objections are pointed out, which we have carefully considered, and do not deem them of sufficient importance to merit discussion. That there are some slight errors may be admitted; but they are not of such character that they could have prejudiced appellant before the jury, under the facts proved.
The judgment of the Appellate Court is correct, and should be affirmed.
Judgment affirmed.