City of Dixon v. Scott

• Decision Date: 13 October 1899
• Citation: 54 N.E. 897,181 Ill. 116
• Parties: CITY OF DIXON v. SCOTT.
• Court: Illinois Supreme Court

181 Ill. 116

54 N.E. 897

CITY OF DIXON

v.SCOTT.

Supreme Court of Illinois.

Oct. 13, 1899.

Appeal from appellate court, Second district.

Action by Robert H. Scott, administrator. etc., against the city of Dixon. From a judgment of the appellate court (81 Ill. App. 368) affirming a judgment for plaintiff, defendant appeals. Affirmed.

H. A. Brooks, H. S. Dixon, and Barge & Barge, for appellant.

Morrison & Bethea, for appellee.

CARTER, J.

The first judgment for the plaintiff in this case was reversed by the appellate court (74 Ill. App. 277), but on the second trial the plaintiff secured another judgment, which has been affirmed. The only questions raised by appellant on this appeal which we can consider relate to the instructions. The action was case for an injury to the plaintiff, caused by a defective sidewalk, and the defendant asked this instruction: ‘The court instructs the jury that in determining what credit, if any, should be given to the plaintiff's testimony, it is the duty of the jury to take into consideration the interest which the plaintiff has in the result of this suit as a party to this case.’ The court modified that part of the instruction after the word ‘testimony’ so as to read, ‘The jury are authorized to take into consideration and consider the interest which,’ etc., and gave the instruction as modified. Appellantinsists here that in this the court erred. The evidence tended to prove that other witnesses testified in the case, who were interested in the result of the suit; and we have held that in such cases it is not error to refuse an instruction which singles out one such witness, and applies to him only this test of credibility. Pennsylvania Co. v. Versten, 140 Ill. 637, 30 N. E. 540. True, the modification did not relieve the instruction of this defect, but it changed its peremptory character, and, as given, was, as an entire proposition, more favorable to the defendant than it was entitled to. The court would also have been justified in refusing it altogether for another reason. It is not pretended that the plaintiff was in any way impeached, or that there was any evidence (upon which an instruction could have properly been based) that the jury might refuse to give any credit whatever to her testimony in making up their verdict; yet the instruction in qustion, by the words ‘if any,’ contained an implication by the court to the jury that the plaintiff might not be entitled to any credit as a witness. Whether, if the verdict had been against the plaintiff, and she had complained of this instruction, she would have been entitled to a new trial, it is not necessary here to decide, for a defect in an instruction may justify its refusal, but may not be sufficiently harmful to reverse the judgment where the instruction is given. Devlin v. People, 104 Ill. 504. We are of the opinion that the appellant has no ground of complaint in the ruling of the court in giving the instruction as modified. Insurance Co....