130 Ill. App. 573 | Ill. App. Ct. | 1906
delivered the opinion of the court.'
It is first urged in behalf of appellant that the Snperior Court erred in admitting over objections improper evidence offered by appellee. It is complained that upon leading questions put to one of appellant’s witnesses on cross-examination by appellee’s attorneys, the claim of right was based to put questions to other witnesses which it is said were so leading that they put into, the mouths of appellee’s own witnesses the answers desired. Appellee’s attorneys reply that there was no specific objection made at the time to the form of these questions put for the purpose of impeaching one of appellant’s important witnesses, that" there was no exception preserved to the ruling of the court, that leading questions may be properly allowed in the exercise of legitimate discretion by the trial court, and the impeaching questions were in the usual and proper form. We concur in the main in these contentions of appellee. It is true that it appears from, the abstract prepared by appellant’s attorneys and hence to be construed in case of controversy as correct so far as it is against their contentions, that general exceptions were preserved “to which ruling of the court” without making it clear what specific ruling is referred to. There are doubtless cases where it might be an abuse of the court’s discretion when a witness is called to impeach a former witness by testifying that the latter in conversation had stated certain facts to be different from what he had testified they were at the trial, to allow.the impeaching witness to be asked in the first instance whether the former witness had made certain definite statements, telling the impeaching witness what they were. It may be true that often, perhaps, it would be wiser and fairer to inquire generally what the former witness had said in the conversation referred to. Yet there are no doubt cases where it is proper that the impeaching witness should have his attention directed to the particular point as to which his testimony is desired.. We are of the opinion that what is said in Starkie on Evidence, pp. 169, 170, is in point: “So where a witness is called in order to contradict the testimony of a former witness who has stated that such and such expressions were used or such and such things were said it is the usual practice to ask whether those particular expressions were used, or those things were said, without putting the question in a general form by inquiring what was said. If this were not to be allowed it is obvious that much irrelevant and inadmissible matter would frequently be detailed by the witness;” and “where a witness is called to prove affirmatively what a witness on the other side has denied, as, for instance, to prove that on some former occasion that witness gave a different account of the transaction, a difficulty may frequently arise in proving affirmatively that the first witness did make such other statement without a direct question to that effect.”
It is further insisted that the verdict of the jury is one that reasonable and fair-minded men endeavoring to ascertain the truth could not have arrived at. We have given the evidence most careful consideration and are compelled to differ with appellant’s attorneys upon this point. The, testimony introduced in behálf of appellant, which, it is insisted, the jury disregarded, is to the effect that the team track upon which it is conceded appellee received his injuries, was full of cars from eight o’clock in the evening until between two and three o’clock in the morning, and it is argued that it was impossible that appellee could have been knocked down as he' states by a moving car on 32nd street; that no car could have been moved on that track at that place at the time when appellee was injured. We are of opinion that the evidence of appellant’s books tending to show that certain cars were op that track that night, and the testimony tending to show that the track was at some time that night full of cars, is not by any means conclusive in appellant’s behalf, even if its truthfulness be conceded. Appellant’s theory that appellee was intoxicated and that in a state of inebriety he had gone a long' distance from the street along this team track and had crawled under cars on the track and was run over in consequence when the cars came to be moved, is based in part upon appellee’s statement that he had one bottle of beer while at supper at a restaurant at least an hour or two before the accident, and in part based upon the testimony of appellant’s employes who were operating the cars by which he was run over. There is no satisfactory evidence of appellee’s intoxication that we can discover, and his own story that he was dragged by the car by which he was hit some considerable distance, would account for the distance from 32nd street to the place where he was picked up, if the jury believed the testimony in his behalf. As to this distance, there is conflict in the testimony, placing it from seventy-five feet to several times that distance. No sufficient reason is shown other than the statements of some of appellant’s witnesses why the jury should accept their version and reject appellee’s. Indeed, we are of opinion the evidence preponderates against appellant as to the distance from 32nd street to the point where appellee was picked up. Conceding that the team track was at an earlier time that night full of cars, as appellant contends it • was, yet if the cars on it or most of them, were removed before the time of the accident, even but a very short time before, the conditions would in all probability have been such as appellee states they were when he says he was struck. There is a wide difference in the testimony even of appellant’s witnesses as to the hour when the accident occurred. There is evidence also given by appellant’s witnesses tending to show that the cars on the team track were in fact drawn out that night on to a main track; that the empties were sifted out and that the cars still to be unloaded were then “kicked” back on to this team track; that this was done several times, and that no one was riding on these detached cars thus sent rolling through the darkness down this team track and over streets that crossed it, without lights or signals of any kind. The track itself -was outside of the gates presumably placed there to protect travelers from danger by reason of any passing cars, and presumably giving notice that such danger was passed when the traveler had gotten outside of and beyond them. Appellee testifies that when he first discovered the tracks, numerous at that street crossing which he was approaching, he saw a freight train moving north which looked to him to be upon the easterly of the tracks in question, and back of what he at first supposed to be two lines of freight cars, but afterwards discovered to be a fence. If he is correct in this it would tend to show that at that time cars which ^appellant claim were on the team track were then in the act of' being hauled away for the purpose of sifting out those that were empty and returning those that were not. No claim is made that appellee was familiar with the conditions or knew of the location of this team track or its existence.
Without prolonging the discussion it is evident, we think, that to disturb the finding of the jury upon the questions of fact would be unwarranted.
It is said that the Superior Court erred in refusing to give an instruction requested by appellant. This instruction told the jury they had a right to take into consideration in passing upon the testimony “the fact that the plaintiff has an interest in the result” of the trial and a right to give to his testimony only such weight as they might think it was entitled to under the evidence. The practice of singling out the plaintiff’s testimony in this way is not generally regarded with favor. Penn. Co. v. Versten, 140 Ill. 637, 642. The refusal was not erroneous. Especially is this true in the present case, since all that was meritorious in the refused instructions was in-eluded in one that was given at appellant’s request, but which instead of singling out the plaintiff as such, applied the instruction to “parties to the suit” and instructed that “the fact that such witnesses are interested in the result of the suit if it so appears from the evidence, may be taken into account by the jury.”
We are told that the verdict is excessive. It is true that appellee, at the time of the accident a student of ingineering, was then earning only $60 a month and that he is now in his crippled condition able to earn the same sum. The purpose of the award of money compensation in cases of this kind is to make good, so far as money can do so, the loss and damage caused by the injury inflicted by reason of the defendant’s negligence. There is evidence tending to show that the surgical and hospital attendance appellee received is reasonably worth over, two thousand dollars. His injuries seem to necessitate the services of a person to wait on him and render assistance in the performance of functions indispensable to the maintenance of life. His food must be specially prepared and served to him. This service, should his life be prolonged, cannot in all probability continue to be rendered indefinitely by the hands of affectionate kindred. It must be hired and paid for. The prevailing rates of interest upon a safe investment of $30,000, which rates are likely to diminish rather than increase, would not provide an over-liberal compensation for such services as will continue to be indispensable to appellee. While we recognize the duty incumbent upon us to scrutinize carefully the amounts of verdicts returned in cases of suits for personal injuries, we cannot be warranted in setting aside a verdict'merely because the amount is large, where it is without reasonable doubt based upon sound legal principles. While compensation for the multiplied injuries received in consequence of dangers resulting from the increased use of machinery and modern methods' of transportation continues to be awarded only through wasteful methods of litigation, it will remain the duty of courts to carefully apply these principles to each case, in considering whether verdicts are or are not excessive. In the present case we are unable to regard the verdict and judgment as open to that objection.
It is strenuously urged that this judgment must be set aside because it is. said that when the trial judge during the argument of counsel left the court room and went away to his home in an adjoining county, to enable him to keep an official appointment there, the court was dissolved and all proceedings thereafter had in the absence of any judge were a nullity, being coram non judice. The proceedings had in the absence of the trial judge were the conclusion of the final argument to the jury, the reading by the clerk of the instructions previously prepared by the judge, and the retirement of the jury to consider their verdict.
The bill of exceptions shows affirmatively over the signature and seal of the trial judge, that the respective counsel were asked by the court whether they would agree that the arguments might be concluded, the instructions marked “given” by the court, read to the jury by the clerk of court and the jury retire, all in the absence of the court, and that the jury be allowed to return a sealed verdict and separate, the verdict to be received next morning by another judge. It is certified that this was agreed to by the counsel for both sides. It appears from this certificate. that no exception was taken to this procedure at the time and no objection was made to it until after appellant had filed its written motion for a new trial, in which no grounds were assigned based on claim of error because of the absence of the judge; nor was any such objection made until after that original motion for a new trial had been argued though not finally disposed of by the court. Then, seventeen days later, pending such disposal, appellant without leave of court or notice, it is said, filed a paper assigning as additional grounds for a new trial the proceedings under consideration had in the absence of the trial judge from the court room.
Appellant’s contention is that the judge could not delegate his power to the clerk of court nor any one else; that giving instructions is a judicial act, which only a judge can perform and which he cannot delegate even with consent of the parties to the suit, and that it is his duty to hear all of the arguments of counsel to the jury. Appellant’s attorneys declare that the question presented by the record in this respect is whether the judge. can abdicate his- function, go away from the court room and delegate to the clerk the performance of his duties even with consent of the respective counsel. We concur in the view that judicial powers cannot be delegated by the judge, that he cannot act by deputy and that a trial must be had in a court such as prescribed by law. It is well settled also that jurisdiction cannot be conferred upon a court, much less upon an individual not a judge, by mere consent of parties. Stubbings v. City of Evanston, 156 Ill. 338. See also Hoagland v. Creed, 81 Ill. 506-507; Blair v. Reading, 99 Ill. 600; State ex rel. v. Noble, 118 Ind. 350. In the case before us the verdict was received by a judge properly authorized, and no question is raised as to the validity of his action. We agree with appellant’s counsel that it is as much the duty of the trial judge to preside over the argument of a cause before a jury as it is to listen to the evidence. He should maintain entire control of the trial. Any other practice, with or without consent of counsel, is to be denrecated whether it is deemed reversible error under all circumstances or not. In the present case nothing appears which indi.cates that either party was in fact prejudiced by the judge’s absence at that particular time. The closing argument was concluded in a decorous manner without objection, criticism or dispute. It would be- extremely technical to reverse this judgment because of the error of the trial judge in this respect, which, so far as the record indicates, was not in the least prejudicial to either party and for which neither was responsible, unless in giving their consent at the instance of and to oblige the court. Had anything occurred because of the absence of the judge during the argument to the jury, which was or might have been prejudicial, a different conclusion might have been inevitable; but as the case stands we must regard the error as merely technical, objection to which has been waived by the consent of the parties.
It is urged, however, that giving instructions to a jury is a judicial act which can be performed by no one but a judge, that this act cannot be delegated by him, and “is a power which parties can not. by consent authorize him to bestow upon the clerk of the court;” that “instructions are not given to a jury until they are read or handed to it.” It is important to bear in mind that the instructions read to the jury by the clerk were actually prepared and marked “given” as the statute requires, by the judge himself. They were the court’s instructions. This is not disputed and is in effect conceded in appellant’s motion for a new trial, in which it is recited that “the court erred in giving to the jury instructions asked,” etc. The only delegated acts performed by the clerk of court were reading the instructions and handing them to the jury by direction of the judge.' No one would probably question that if this had been done just as it was done, but in the presence instead of in the absence of the judge, the proceedings would have been unobjectionable. It may be said, and with much force, that to trust 'such matters to the clerk of court might give opportunity for fraud or deception should there be officers of court dishonestly inclined or lacking in vigilance. In the present case, however, there is no question but that the instructions were accurately given as the court prepared them. As we have said, no right nor privilege was lost to appellant by the court’s temporary absence, and appellant was in no way injuriously affected. Under the statute exceptions to giving or refusing instructions may be entered at any time before entry of judgment. Practice Act, chap. 110, R. S., sec. 54. When the jury having signed and seale'd their verdict assembled the next morning before another judge sitting in the same court, counsel on both sides were present, and it was competent for them then, before the verdict was received, to raise all the objections which are now urged because of the absence of the judge when the instructions were read. No objection was made. The sealed verdict was opened and read without objection and the ordinary motion for a new trial was entered.' In this state of facts, what is said in Sanitary District v. Cullerton, 147 Ill. 385-393, is in point: “We are of opinion that by not objecting when he had an opportunity to do so, the right was waived. * * * Appellant could not lie by with full knowledge of what was being done, ready to accept it if the verdict was favorable and insist upon it if the verdict should prove unfavorable.” See also Hall v. O’Brien, 4 Scam. 406. where exception to the temporary absence of the trial judge was not taken until after verdict and the jury was discharged. Had the verdict in the present case been favorable to appellant it may safely be assumed that the latter’s attorneys would have insisted strenuously that no error had been committed warranting a new trial.
Appellant urges that the error was one that could not be waived, that the presence of the judge is essential to the existence of the court, and that in his absence there was no court. Granting that the session of court may be deemed suspended in the judge’s absence, it does not necessarily follow that the proceedings in controversy were a nullity. In Macnamara on Nullities and Irregularities in Law, p. 20, it is said 'that “an irregularity is a formal but a nullity is a substantial defect. * * * One applies1 chiefly to the manner, the other to the matter or merits of the proceeding; the former is voidable, the' latter absolutely void;” and it is said that “it may be laid down as a certain rule that whenever there is any doubt' upon the matter it will always be safer to treat the defect as an irregularity rather than as a nullity,” that “an irregularity may be waived.” We are of opinion that the error complained of was an irregularity, not a nullity, and that it could be and was waived by the conduct of appellants. There are cases ‘ in other jurisdictions in which the temporary absence of a judge during the trial of a cause has been considered an irregularity which could be waived. Bedal v. Spurr, 33 Minn. 207-208; Baxter v. Ray, 62 Iowa, 336-339; Western Union Tel. Co. v. Lewelling, 58 Ind. 367-373; Horne v. Rogers (Georgia Sup. Ct.), 49 L. R. A. 176-181; Crook v. Hamlin, 24 N. Y. Suppl. 543. In Horne v. Rogers, supra, it is said (p. 180): “In order for such absence to become reversible error it must appear not only that objection was made to the judge’s failure to suspend the trial, but that the absence of the judge resulted in some harm to the losing party.”
There is a supplemental bill of exceptions containing affidavits from which it appears there was a misunderstanding between appellant’s counsel and the court as to what they were consenting to when the court asked them to agree to his absence from the conclusion of the trial. This emphasizes in our opinion the very strong objection which may well be urged to procedure such as that under consideration. We are constrained to hold that the presiding judge should in no case absent himself from the court room during the progress of a trial, without suspending the proceedings; that to do so is error, which, though as in the case at bar it may sometimes be waived, may readily afford ground nevertheless for setting aside the proceedings and compel a new trial.
Foi the reasons indicated, however, the judgment of the Superior Court will be affirmed.
Affirmed.