Graham v. Mattoon City Ry. Co.

Decision Date05 June 1908
Citation84 N.E. 1070,234 Ill. 483
CourtIllinois Supreme Court


Appeal from Appellate Court, Third District, on Appeal from City Court of Mattoon; Horace S. Clark, Judge.

Action by Daniel Graham against the Mattoon City Railway Company. Judgment for plaintiff affirmed by Appellate Court, and defendant appeals. Affirmed.

H. M. Steely and Andrews & Vause, for appellant.

Bryan H. Tivnen, for appellee.


Daniel Graham recovered a judgment in city court of Mattoon against the Mattoon City Railway Company for $5,000 on account of personal injuries received by the plaintiff in a collision of an east-bound car, on which the plaintiff was motorman, and a west-bound car, running from Charleston to Mattoon, over defendant's line of road. This judgmenthas been affirmed by the Appellate Court for the Third District, and the railroad company has perfected an appeal to this court, and has assigned error upon the rulings of the court in the admission of testimony, the refusal of the court to direct a verdict, alleged improper remarks of counsel in addressing the jury, and upon the giving of instructions on behalf of appellee.

Appellant operates a single-track electric railway running east from Mattoon to Charleston, a distance of approximately 12 miles. Going east from Mattoon, the first switch is Banana siding, about seven blocks from the starting point. About one mile and three-quarters east of Banana siding is another switch, called ‘Jones' switch.’ Still further east is another station, called ‘Loxa,’ which is about six miles from Mattoon, and east of Loxa is Urban Park, where games of baseball were played usually three days out of the week during the summer. About midway between Banana siding and Jones' switch appellant's track curved north for a distance of over 1,300 feet. Following this curve the track was straight for 375 feet, then there was another curve to the north-east for about 1,600 feet. Appellant operated two regular cars between Mattoon and Charleston, known as cars Nos. 11 and 12. The usual running time between the two cities is 30 minutes. These regular cars were operated upon an established time-table. Appellee was motorman on car No. 12, which was scheduled to leave Mattoon at 1:45 p. m. On the day of the accident appellee was directed by the superintendent to turn car No. 12 over to another crew, and to take car No. 18 to Urban Park for the accommodation of persons who might desire to attend the ball game to be played at that place on that day. Car No. 11 was scheduled to leave Charleston at 1:45. When appellee was ordered to take extra No. 18 to Urban Park he was ordered to proceed to Jones' switch, and there pass No. 11, coming west. Appellee in charge of extra No. 18 left Mattoon a few minutes past 2 o'clock. Appellant failed to notify the employés in charge of No. 11, coming west, that an extra was being sent out, and the employés in charge of No. 11 had no notice whatever that they were expected to meet an extra at Jones' switch or elsewhere on the track. About midway between Banana siding and Jones' switch the two cars collided. In the collision appellee sustained the injuries for which this suit is brought. The negligence charged in the declaration is in ordering appellee to take extra car No. 18 out, and negligently failing to give notice to the servants in charge of No. 11 of the fact that appellee's car was being run east at that time.

Appellant complains of the rulings of the trial court in admitting, over its objection, improper and irrelevant evidence. Appellee became a witness in his own behalf, and on page 57 of the record, which is the second page of appellee's testimony, he was asked this question: ‘You are a married man?’ to which appellee answered: ‘Yes, sir.’ There was no objection to this question by appellant, and the court was not asked to make a ruling upon it. Again, on page 83 of the record and near the close of appellee's testimony, the same question was again asked and answered in the same way. At this time appellant objected to the question as immaterial and improper. The court sustained the objection and excluded the answer, and the record shows that appellant's counsel excepted to that ruling of the court. Appellant's position is that, the question having been answered, the injury was not removed by a favorable ruling excluding the answer from the jury. This testimony was irrelevant and improper, but it does not follow necessarily that the judgment should be reversed for that reason. Whatever injury may have been produced, if any, by this evidence, was done when the question was first asked and answered without objection. The mere repetition of it at the close of appellee's testimony could add nothing to the force of the evidence which had already gone to the jury without objection. There was no motion to strike out the appellee's answer to the question when it was first asked. Having failed to object at the proper time, we think that appellant must be held to have waived its right to have its objection, made when the question is repeated at a later stage in the trial, considered as applicable to the same question when asked in the first instance. The fact proven to which appellant objects being in the record without objection at the time the question objected to was asked, appellant is in no better position to complain than if it had made no objection whatever at any time.

Appellant also complains of a ruling of the trial court permitting appellee to testify that he did not have sufficient education to fill a clerical position. The general rule upon this subject is that all evidence tending to show the character of the ordinary pursuits followed by the party injured, and the extent to which the injury has prevented and will prevent him from following them, is admissible. District of Columbia v. Woodbury, 136 U. S. 450, 10 Sup. Ct. 990, 34 L. Ed. 472; Sutherland on Damages, § 1248. The object to be attained in all such cases is to ascertain, as accurately as possible, the amount of money which will fairly compensate the injured party for the damages sustained. The law does not assume that a particular injury calls for a definite amount of compensation. The just compensation contemplated by the law may vary widely in different cases, even where the physical injury is the same in consequence of the different situations of the persons injured and their ability of want of ability to pursue some lucrative employment. Undoubtedly an injury which incapacitates one from following the only calling which he is able to pursue would entitle him to more compensation than the same injury would if he were qualified to take up some other equally profitable pursuit notwithstanding the injury. It has been held that the injured party may show, as bearing upon the question of his damages, that the he had learned no business or trade, had no education, and could not do office work. Sutherland on Damages, § 1248; [234 Ill. 488]13 Cyc. 203; Helton v. Alabama Midland Co., 97 Ala. 275, 12 South. 276;McCoy v. Milwaukee Street Railway Co., 88 Wis. 56, 59 N. W. 453. The evidence shows that appellee was a strong, vigorous man at the time of and previous to the injury. He weighed at that time nearly 300 pounds. At the time of the trial he weighed 188 pounds. His physical strength and ability to perform manual labor were very seriously impaired as a result of his injuries. His was incapable, in...

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13 cases
  • Hintz v. Wagner
    • United States
    • North Dakota Supreme Court
    • February 18, 1913
    ... ... testimony, or a question for the jury. Kline v. Kansas ... City, St. J. & C. B. R. Co. 50 Iowa 659; People v ... Hare, 57 Mich. 505, 24 N.W. 843; Yost v ... 89 Minn. 354, 94 N.W. 1079; Ashley ... v. Sioux City, Iowa , 93 N.W. 303; Graham v. Mattoon ... City R. Co. 234 Ill. 483, 84 N.E. 1070, 14 Ann. Cas ... 853; Hunt v. Dubuque, ... ...
  • Jensen v. Elgin, J. & E. Ry. Co.
    • United States
    • United States Appellate Court of Illinois
    • May 23, 1961
    ...340, 173 N.E.2d at page 217. The court observed that since it is proper in Illinois ot argue for a given total (Graham v. Mattoon City Railway Co., 234 Ill. 483, 84 N.E. 1070), then the method arriving at the total would also be proper. We are inclined to regard this use of the per diem arg......
  • Evening Star Newspaper Company v. Gray
    • United States
    • D.C. Court of Appeals
    • March 20, 1962
    ...same grounds, we must reject defendant's contention that it was improper to refer to the ad damnum in argument. See Graham v. Mattoon City Ry. Co., 234 Ill. 483, 84 N.E. 1070; Williams v. Williams, 87 N.H. 430, 182 A. 172; Eich-stadt v. Underwood, Ky.App., 337 S.W.2d Nor did the trial judge......
  • Caley v. Manicke
    • United States
    • Illinois Supreme Court
    • March 23, 1962
    ...were subjected to expressions of counsels' partisan conscience and judgment on the matter. We recognize that in Graham v. Mattoon City R. R., 234 Ill. 483, 84 N.E. 1070 (1909), this court, without discussion, stated: 'We do not think that there is any valid objection to counsel, in argument......
  • Request a trial to view additional results
1 books & journal articles
  • Damage Anchors on Real Juries
    • United States
    • Wiley Journal of Empirical Legal Studies No. 8-s1, December 2011
    • December 1, 2011
    ...Am. Soc. Rev.).43In permitting ad damnums, Arizona follows the traditional practice of many states. See, e.g., Graham v. Mattoon CityRy., 84 N.E. 1070 (Ill. 1909); Maurizi v. W. Coal & Mining Co., 11 S.W.2d 268 (Mo. 1928).160 Diamond et primary types of damages, past and future special dama......

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