202 Ill. 462 | Ill. | 1903
delivered the opinion of the court:
One of the errors assigned is that the Appellate Court refused to review questions of fact in the case. Counsel for appellant says that it is evident from the opinion of the Appellate Court that the court refused to consider the question whether the general verdict and special findings were against the evidence, but took all questions of fact as conclusively established against appellant becauseof the special findings. Error cannot be assigned on the opinion of the Appellate Court, but only on its judgment. (Pennsylvania Co. v. Versten, 140 Ill. 637; Strodtmann v. County of Menard, 158 id. 155.) It will be presumed that the Appellate Court did its duty and considered the evidence, in all cases where its consideration is brought before the court by a proper bill of exceptions and assignment of errors.
But it is insisted this presumption ought not to prevail when it appears from the opinion of the Appellate Court that it regarded the verdict of the jury as conclusive of the facts and refused to consider them. It may be that expressions sometimes found in the opinions have given rise to the many complaints made in this court in the briefs and arguments of counsel, that the Appellate Court refused to consider controverted questions of fact in the case. It is, of course, the bounden duty of the Appellate Courts to consider questions of fact properly presented and to correct errors of fact committed by the trial courts. To an assignment of error that the verdict and judgment are against the weight of the evidence it is obviously no answer to say that there was evidence tending to support the finding below. Whether there was evidence tending to support the verdict, or not, is a question of law, and not of fact, and such a question may be finally determined by this court; but whether the verdict is against the weight of the evidence is, when properly presented, a question for the Appellate Court. To select a single clause, as, for example, there was evidence to support the finding, is not always a fair test of the meaning of the court. Alone it is a statement of law, but from the context it may well be understood as a statement of fact, and in the latter sense it may be found to have been used in the opinions of this court. Where, however, it is alleged that the trial court erred in overruling the motion for a new trial, based on the ground that the verdict was against the weight of the evidence, the Appellate Court is the only tribunal that can correct the error, if any has been committed, and the aggrieved party has the undoubted right to have the decision of that court on the question. Its decision being final on such a question, the duty fully to consider and determine it would seem to be all the more imperative. But in the case at bar we do not understand, even from the language of the opinion filed, that the Appellate Court regarded the decision below as conclusive of the facts, but only that the objection that the verdict was against the weight of the evidence applied only to the general verdict, and not to the answers of the jury to the special interrogatories submitted to be answered, as this court has already held, (Avery v. Moore, 133 Ill. 74; Pennsylvania Goal Co. v. Kelly, 156 id. 9; Empire Machinery Co. v. Brady, 164 id. 58;) and that the special finding's, not having been mentioned as a ground for new trial, could not be assigned as error in the Appellate Court, and that, such findings being unquestioned and substantially conclusive of the facts upon which the question of liability depended, the judgment could not, on the alleged error, be reversed. And we have held that the questions of fact involved in such .findings are conclusively settled by the judgment of the Appellate Court. Illinois Steel Co. v. Mann, 197 Ill. 186.
The appellant contends that instructions 9 and 11 given for defendant below are improper because they single out certain parts of the evidence, thereby calling the special attention of the jury to the same. We think that these instructions are not subject to this objection, for they substantially state the case made by the evidence, without leaving out anything material to a full presentation of the same. Taken in connection with other instructions, they could not have misled the jury.
Instruction 11 is further objected to on account of the following expression contained in it: “If you believe, from the evidence, that he knew, or by the exercise of ordinary care might have known, that there were men on top of the coal conveyor engaged in throwing timbers to the ground. ” It is claimed the proper word to be used was “would” instead of “might.” While we think the word “would” would have more accurately expressed the law, still, taking the instruction as a whole, we do not find any harmful error in it.
Instruction 13 given for defendant below is as follows:
“The court instructs the jury that if you believe, from the evidence, that George Voigt was one of a gang of carpenters employed by the defendant in its construction wo^k, and that the tinners’ helpers in question belonged to a gang of tinners employed by the defendant in the same construction work, and that the members of the said carpenters’ gang and the said tinners’ gang were habitually associated with each other in the performance of their usual duties in such a way that they could exercise an influence upon each other promotive of proper caution, then the members, of the said carpenters’ gang and said tinners’ gang were all fellow-servants, and the defendant is not liable, in law, for the death of one caused solely through the fault of the other.”
The objection to this instruction is, that it is not the question whether other members of the tinners ’ and carpenters’ g'angs were fellow-servants,, but whether the deceased and the two tinners’ helpers were fellow-servants. The deceased was a member of the carpenters’ gang and the tinners’ helpers were members of the tinners’ gang, and they were included in the terms .used in the instruction. The first instruction given for plaintiff, specially called the attention of the jury to the question whether the deceased and the two tinners’ helpers were fellow-servants. There was no error in giving this instruction.
It is claimed, also, that error was committed in allowing the jury to take an exhibit into the jury room, in which portions were underscored. This exhibit was a. copy of the stenographic report of the evidence taken at the coroner’s inquest held over the body of Peter GeorgeVoigt, and was used by the stenographer in refreshing" her memory in giving her testimony. The bill of exceptions states that it was admitted in evidence, and no exception is noted by the plaintiff. Her counsel insists he was not aware that this particular exhibit was offered in evidence. Just before the jury retired to consider of their verdict he discovered that this exhibit was about to-be taken into the jury room and made a motion to strike-it from the record, which motion was denied as being too-late. The substance of this exhibit was already in evi-. dence in two other exhibits, — one, a signed statement of George Graham, a witness for the plaintiff, taken from the files of the coroner’s office, and the other, an affidavit of the same person relating to the death of Voigt. While-the admission in evidence of this exhibit was improper and it should not have gone into the jury room, still we-do not see how any harm could have been done plaintiff by it. The jury had substantially the same written statement with them, given in evidence by plaintiff herself. The verdict and findings of the jury are fully supported, by the evidence, -exclusive of what is contained in this exhibit. Its repetition by the defendant ought not to-operate to reverse the judgment.
Other minor questions discussed by counsel we have examined, but find no harmful error in the record. The-judgment will therefore be affirmed.
Judgment affio'med.
