Illinois Cent. R. Co. v. Souders
| Decision Date | 17 February 1899 |
| Citation | 178 Ill. 585,53 N.E. 408 |
| Parties | ILLINOIS CENT. R. CO. v. SOUDERS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from appellate court, First district.
Action by Helen Souders against the Illionois Central Railroad Company. Judgment for plaintiff was affirmed in the appellate court, and defendant appeals. Reversed.
Magruder, J., dissenting.John G. Drennan (James Fentress, of counsel), for appellant.
Phelps & Cleland, for appellee.
Appellee recovered a judgment against appellant, in the superior court of Cook county, for $20,000 damages for an injury received by her when alighting from a suburban train of appellant at Cheltenham, November 4, 1893. The original declaration was filed July 5, 1894, and consisted of a single count, in which the negligence charged was that, upon the arrival of the train in which plaintiff was a passenger at Cheltenham Beach, while she, with all due care and diligence, was about to alight therefrom, defendant caused it to be suddenly and violently started and moved, throwing her upon the ground and causing her injury. There was a trial of the issue made under that declaration, resulting in a verdict for $15,000 which was set aside, and leave was given to file additional counts and to increase the ad damnum from $25,000 to $50,000. After the lapse of more than two years from the time of the injury, three additional counts were filed. To these additional counts a plea of the general issue was filed and also a plea of the statute of limitations. The court sustained a demurrer to the plea of the statute of limitations, and the defendant stood by the plea. This action of the court is assigned as error. The additional counts each state the same occurrence and the same injury as the original declaration, and charge in each instance, in somewhat variant language, as the proximate cause of the injury, the negligent starting of the train when plaintiff, with due care, was about to alight therefrom, before a reasonable or sufficient time had elapsed for that purpose. They all state the same cause of action, but, in addition, the second of them charges that defendant failed to erect and maintain a platform elevated from the ground, to give plaintiff an opportunity to safely alight upon the platform, and the third charges that defendant neglected to provide any platform. There is no fact stated in either which shows that plaintiff fell or was injured by reason of there being no platform or one not elevated. It is true that plaintiff says there was negligence in that respect; but it is not connected by any averment with the injury, while such injury is expressly alleged to have been due to another cause. It cannot be regarded as the statement of a new cause of action, but rather as a fuller statement of the situation, and we think there was no error in sustaining the demurrer.
At the conclusion of the evidence for plaintiff, and also at the close of all the evidence, defendant asked the court to instruct the jury to return a verdict of not guilty, and the request was refused. There was evidence on the part of the plaintiff fairly tending to establish the cause of action. She and her husband both testified that when the train arrived at Cheltenham they proceeded to get off, and he did get off, but the train did not stop long enough to enable her to do so, and while she was stepping from the train it was started, and she was thrown forward and suffered the injury. With that evidence in her favor the issue was properly submitted to the jury, and it was right to refuse the instruction.
But one instruction was given on the part of the plaintiff, and it stated what facts the jury might take into consideration in fixing her damages, in case they found the issues for her. It is criticised by counsel, but we do not think any substantial ground of objection exists, and the same language was approved in Railroad Co. v. Holland, 122 Ill. 461, 13 N. E. 145.
On the motion for a new trial, the court rejected an affidavit offered by defendant that trere had appeared in the newspapers of Chicago, during the trial, notices of the suit, and statements that on the first trial plaintiff had been awarded a verdict of $15,000, which affiant believed had found their way to the jury room. No fact in any way affecting the merits of the case was stated in the newspapers, and no opinion was expressed, so that there was nothing in the newspapers which would justify the court in setting aside the verdict, even if it had been positively shown that they reached the jury, and the affidavit did not contain a positive averment of that fact. There was no error in rejecting the affidavit.
Much complaint is made of the conduct of counsel for plaintiff, and remarks of the court prejudicial to the defendant, and tending to destroy the fairness and impartiality which should characterize every judicial proceeding. We have often been called upon to condemn, as violations of propriety, the language of counsel where the court made some ruling or took some action which seemed sufficient to remove the deleterious effect. Judgments have been sustained in such cases where the court, upon being called on, has performed its duty, and where it has appeared that, upon the whole, there was fairness in the trial; but in this case the improprieties complained of were not removed, nor attempted to be removed, in any substantial way, although objection was made and they were excepted to at the time. Some of the objections touching the conduct of counsel are of small moment, and do not require attention. The following are the principal ones:
Plaintiff was a working woman, who had kept boarders, and while testifying her counsel asked her why it was she had charge of that business, and, after objection by defendant, she answered that it was because her husband was not able to work. Having got that answer, her counsel withdrew the question, and immediately put another question, whether she had any other means of support than such...
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