Calumet Elec. St. Ry. Co. v. Van Pelt

• Decision Date: 21 April 1898
• Citation: 173 Ill. 70,50 N.E. 678
• Parties: CALUMET ELECTRIC ST. RY. CO. v. VAN PELT.
• Court: Illinois Supreme Court

173 Ill. 70

50 N.E. 678

CALUMET ELECTRIC ST. RY. CO.

v.VAN PELT.¹

Supreme Court of Illinois.

April 21, 1898.

Appeal from appellate court, First district.

Action by Nettie E. Van Pelt, administratrix of the estate of Edna Irene Van Pelt, deceased, against the Calumet Electric Street-Railway Company. Judgment for plaintiff, and defendant appealed to the appellate court (68 Ill. App. 582), and from judgment of affirmance defendant appeals. Affirmed.

Judson F. Going and Louis G. Knight (J. A. Burhans, of counsel), for appellant.

H. T. & L. Helm and H. W. Magee, for appellee.

BOGGS, J.

Edna Irene Van Pelt, a girl about 9 1/2 years of age, was struck and killed by one of appellant's cars. The appellee, administratrix of the estate of said deceased, brought this action on the case under the statute, in the superior court of Cook county, to recover damages sustained by the next of kin of said deceased, it being alleged her death was caused by the negligence of the servants of the appellant company. A trial before a jury resulted in a verdict in favor of the appellee in the sum of $5,000, upon which the court entered judgment. The appellant company prosecuted an appeal to the appellate court for the First district, and from a judgment of affirmance in said appellate court has prosecuted a further appeal to this court.

The errors assigned are stated in the brief of counsel for appellant as follows: (1) The court erred in refusing, at the close of the trial, to instruct the jury to find the defendant company not guilty; (2) the court erred in giving instruction No. 1, asked on behalf of appellee; (3) the appellate court erred in ruling that the question whether the damages recovered were excessive was not brought before it for review. When the testimony for both parties had been produced, the cause was argued, and submitted to the jury. The court gave to the jury, on behalf of the appellant company, instructions Nos. 2 to 17, inclusive, as asked, but refused to give instruction No. 18, presented in the same behalf. Instruction No. 18, so refused, was a peremptory direction to the jury to find the appellant company not guilty. We have repeatedly held that a motion for an instruction to a jury to return a peremptory verdict for one of the parties must be made before submitting the cause to the jury for decision, and that a party, after submitting the cause to the jury for determination, should not be heard to urge the evidence was insufficient to warrant consideration of the case by the jury, and to move the court, for that reason, to direct the jury to return a verdict in his favor. Peirce v. Walters, 164 Ill. 560, 45 N. E. 1068;Vallette v. Bilinski, 167 Ill. 564, 47 N. E. 770;Deposit Co. v. Pederson, 168 Ill. 224, 48 N. E. 30;Railway Co. v. McCallum, 169 Ill. 240, 48 N. E. 424;Gilbert v. Watts-De Golyer Co., 169 Ill. 129, 48 N. E. 430. It was not error to refuse to grant the instruction, and such refusal presents no question to this court relative to the facts or the sufficiency of the testimony.

Instruction No. 1, given on behalf of the appellee, and alleged to be erroneous by the appellant, is as follows: ‘The court instructs the jury that if you believe, from the evidence, that Edna I. Van Pelt, while in the exercise of ordinary care for her safety, and without fault or negligence on her part, lost her life by and through the negligence of the defendant, as charged in the declaration, and that said Edna I. Van Pelt left her surviving next of kin, then you should find the defendant guilty, and assess the plaintiff's damages at such sum as you believe, from the evidence, will be a fair and just compensation, based upon the pecuniary loss, if any, resulting from the death of the said Edna I. Van Pelt to her said next of kin, not exceeding the sum...