Chicago Union Traction Co. v. Roberts

• Decision Date: 23 October 1907
• Citation: 229 Ill. 481,82 N.E. 401
• Parties: CHICAGO UNION TRACTION CO. et al. v. ROBERTS.
• Court: Illinois Supreme Court

229 Ill. 481

82 N.E. 401

CHICAGO UNION TRACTION CO. et al.

v.ROBERTS.

Supreme Court of Illinois.

Oct. 23, 1907.

Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; L. C. Ruth, Judge.

Action by David Roberts against the Chicago Union Traction Company and others to recover for personal injuries. A judgment for plaintiff was affirmed by the Appellate Court, and defendants appeal. Affirmed.

This was an action on the case in the circuit court of Cook county by appellee, David Roberts, against appellants, the Chicago Union Traction Company, West Chicago Street Railroad Company, and Chicago West Division Railway Company, to recover for personal injuries. About 7 o'clock on the morning of September 4, 1902, appellee was a passenger on the second car of a cable train, consisting of a grip car and two trailers. At a point on Milwaukee avenue between Girard street and Fontenoy court the grip struck an iron manhole cover in the track, causing a sudden stop of the train, throwing appellee from his seat and into the street, and injuring him. The amended declaration consisted of two counts; the first charging negligence, generally, in the control and operation of the car, railroad and tracks, and the second charging that appellants negligently permitted and suffered the track to be and remain in bad and unsafe repair and condition, by reason whereof the train came to a sudden stop, and the appellee was thrown with great force and violence against the seats and other parts of said car, and injured. Judgment was rendered against appellants for $7,500, which has been affirmed by the Appellate Court for the First District, and a further appeal is prosecuted to this court.

John A. Rose and Albert M. Cross (W. W. Gurley, of counsel), for appellants.

Richolson & Levy (C. Stuart Beattie, of counsel), for appellee.

CUNN, J. (after stating the facts as above).

Counsel for appellants have wasted labor in discussing the evidence to the extent of nearly two-thirds of their printed argument. On the record no question is presented to this court as to the liability to appellants or the amount of the damages, unless error has intervened in receiving or rejecting evidence or in the instructions to the jury. It is claimed that there is a variance between the declaration and the proof, inasmuch as the declaration charges that the plaintiff was thrown against the seats and other parts of the car, while it is said that the evidence is that he shot directly from his seat to the pavement, without striking any part of the car. The plaintiff himself was the only witness who testified on this point, and he said that the car ran into something, jerked, and threw him against the seat and out; that he struck something on the way to the ground-he thought the upright post opposite him, at the end of the seat. This evidence was not variant from the declaration.

Dr. Golden, a physician who treated appellee on the day of his injury and for some months thereafter, was examined as a witness, and testified at length as to the injuries from which appellee was suffering immediately after the accident and his symptoms and condition to the time of the trial. He was then asked a hypothetical question, assuming that appellee was a healthy, normal man previous to the accident, and that he was thrown and received the injuries which the witness saw, and was in the condition which the witness saw from that time on, and concluding with the inquiry what the witness' opinion would be as to whether the appellee's present condition was due to traumatism or to other causes. Appellants objected to the question on the ground that it invaded the province of the jury, but their objection was overruled, and the witness answered, ‘It was undoubtedly due to the injuries which he received.’ It is insisted that it was error to overrule the objection to this question. It is not controverted that appellee was thrown from the car by its sudden stoppage, and was injured. There was much evidence as to the extent of his injuries and as to the various ailments with which he has since been afflicted. He claims to have continually suffered, as a result of his injuries, from a complication of diseases which permanently disable him, while appellants insist that his injuries were comparatively slight and their effect was merely temporary. The question objected to did not concern the cause of appellee's injuries. It was in regard to the relation between his assumed injury and his condition as observed by the witness. It is not the province of an expert to act as judge or jury. He cannot be called upon to decide a question of fact....