Moore v. Aurora, E.&C.R. Co.
| Decision Date | 11 October 1910 |
| Citation | 246 Ill. 56,92 N.E. 573 |
| Court | Illinois Supreme Court |
| Parties | MOORE v. AURORA, E. & C. R. CO. |
OPINION TEXT STARTS HERE
Error to Appellate Court, Second District, on Appeal from Circuit Court, Kane County; L. C. Ruth, Judge.
Action by Kate A. Moore against the Aurora, Elgin & Chicago Railroad Company. A judgment for defendant was affirmed by the Appellate Court, and defendant brings error. Affirmed.
Albert J. Hopkins, David J. Peffers, and James S. Hopkins, for plaintiff in error.
Russell & Botsford (T. E. Ryan, of counsel), for defendant in error.
This was an action on the case, commenced in the circuit court of Kane county by Kate A. Moore, defendant in error, against the Aurora, Elgin & Chicago Railroad Company, the plaintiff in error, to recover damages for a personal injury sustained by the defendant in error while attempting to alight from one of the cars of the plaintiff in error, in the city of St. Charles. The case was tried upon a declaration containing one count, and the general issue was filed. A verdict was returned and a judgment rendered in favor of the defendant in error for the sum of $6,125, which judgment was affirmed by the Appellate Court for the Second District for the sum of $5,134, after a remittitur for $991, which covered the medical and other expenses of defendant in error in being cured of the injury,had been entered in the Appellate Court by the defendant in error, and the record has been brought to this court by writ of certiorari for further review.
It is first contended that the court erred in declining to take the case from the jury at the close of all the evidence. The count of the declaration upon which the case was tried stated a good cause of action, and, while the evidence was conflicting, the evidence of the defendant in error, standing alone, fairly tended to support the declaration. We cannot therefore say as a matter of law that the trial court erred in declining to take the case from the jury.
It is next contended the court erred in refusing to admit in evidence for the purpose of impeachment a statement in writing made by the witness Millen shortly after the accident occurred. The statement offered in evidence was claimed in some particulars to be in conflict with the testimony of the witness given upon the witness stand. The statement was shown to the witness and he admitted that he had read it and signed it, and the portions thereof which were claimed to be in conflict with his oral testimony were read to him in the presence of the jury and were admitted by him to be contained in the statement. In Illinois Central Railroad Co. v. Wade, 206 Ill. 523, on page 532, 69 N. E. 565, on page 568, it was said: ‘If a witness admits that he made statements imputed to him to have been made as fully as claimed to have been made, further proof of the fact may be unnecessary, but, when the witness denies or does not directly admit that he made the statements, the impeaching proof should be permitted to be given.’ It is clear from an examination of the record that the jurors were as fully informed of the parts of the written statement which tended to contradict the testimony of the witness as they would have been had the entire statement been admitted in evidence. The court did not commit reversible error in declining to admit the written statement in evidence.
It is also contended the court erred in giving to the jury the following instruction: ‘The court instructs the jury that if you believe, from a preponderance of the evidence, that the plaintiff in this case directed the conductor of defendant's car upon which she was then riding to stop the car for her at Prairie street, and if you further believe, from a preponderance of the evidence, that the said conductor did so stop the said car at the said Prairie street, then you are instructed that the plaintiff had the right to assume that the said conductor would not cause the said car to start until she had reasonable time to safely alight therefrom.’
The evidence showed the defendant in error alighted from the car while it was in motion. The defendant in error testified the car and rear platform were crowded with passengers, and that, when the car stopped at the street crossing near her home, she got up from her seat in the car and passed out through the car to the rear platform and took hold of the hand-iron and stepped from the car to the ground; that she did not know, and had no warning, that the car was moving when she stepped from the car and fell. One Wagner testified he was a passenger standing upon the rear platform of the car; that, as the defendant in error was about to leave the car, he said to her the car was moving and not to attempt to leave the car or she might fall-to wait until the car stopped before attempting to get off; that the defendant in error replied she must and could get off. This conversation was...
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