Heldmaier v. Rehor

• Decision Date: 20 December 1900
• Citation: 188 Ill. 458,59 N.E. 9
• Parties: HELDMAIER v. REHOR.
• Court: Illinois Supreme Court

188 Ill. 458

59 N.E. 9

HELDMAIER

v.REHOR.

Supreme Court of Illinois.

Dec. 20, 1900.

Appeal from appellate court, First district.

Action by Otto Rehor, by next friend, against Ernst Heldmaier. From a judgment of the appellate court (90 Ill. App. 96) affirming a judgment for plaintiff, defendant appeals. Affirmed.

George W. Plummer and Wharton Plummer, for appellant.

Brandt & Hoffmann, for appellee.

This is an action of trespass on the case, brought on June 17, 1895, in the superior court of Cook county by the appellee, a minor, suing by his next friend, against the appellant, to recover damages for personal injuries. A plea of not guilty was filed. A trial was had before the court and a jury, which resulted in a verdict of guilty against the defendant, and assessing damages in favor of the plaintiff. A motion for a new trial was made by defendant and overruled, and judgment was entered upon the verdict. An appeal was taken to the appellate court, where the judgment has been affirmed. The present appeal is prosecuted from such judgment of affirmance.

MAGRUDER, J. (after stating the facts).

In this case no complaint is made by the appellant of any error committed by the trial court in the admission or exclusion of evidence, or in the giving or refusal of instructions. The questions involved are purely questions of fact, which are settled by the judgment of the trial court in favor of the plaintiff, and by the judgment of the appellate court affirming the judgment of the trial court. The accident which resulted in in jury to the appellee occurred on June 11, 1895, on Center avenue, in the city of Chicago, between Seventeenth and Eighteenth streets. The appellee was a little child, 2 1/2 years old, at the time when the accident occurred. Appellant is a cut-stone contractor, having been in that business in Chicago for more than 25 years, and having his stone yard in the southwest part of the city. On the afternoon of June 11, 1895, one Anton Jacobs, who was then, and had been for about a year prior thereto, in the service of the appellant, was driving along Center avenue and northward thereon, a wagon belonging to the appellant, and loaded with stone. The load on the wagon weighed about 4 tons, and consisted of 5 or 6 pieces of stone cornice, in length from 4 feet 10 inches to 5 feet,-long enough to project over the width of the wagon bed,-and upon these larger stones were placed 40 or 50 pieces of smaller stones. The appellee's parents lived on Center avenue, opposite the place where the accident occurred. Some five witnesses, living and doing business in the neighborhood, swear that the child was a few feet in front of the horses attached to the wagon when the wagon approached him. There were street-car tracks in the street, and the wagon appears to have been driven with its wheels upon the street-car tracks. The witnesses of the appellee testified that the child was between the tracks and in front of the wagon; that Jacobs at the time of the accident was sitting on the seat in the front part of the wagon, with his elbows upon his knees and his head down, observing nothing in front or on the side, but apparently asleep or drunk; that one or two of the persons who witnessed the position of the child called to the driver of the wagon, but failed to arrest his attention; and that it was necessary to shake him in order to arouse him from the apparent lethargy in which he appeared to be. Some two or three witnesses testify, on behalf of the appellant, that the child ran out from the sidewalk into the street, to the side of the wagon, and attempted to climb upon the stone on the wagon, and while doing so fell...