Lyons v. Chicago City Ry. Co.

• Citation: 258 Ill. 75,101 N.E. 211
• Parties: LYONS v. CHICAGO CITY RY. CO.
• Decision Date: 02 April 1913
• Court: Supreme Court of Illinois

258 Ill. 75

101 N.E. 211

LYONS

v.CHICAGO CITY RY. CO.

Supreme Court of Illinois.

Feb. 20, 1913.

Rehearing Denied April 2, 1913.

Error to Branch B Appellate Court, First District, on Appeal from Circuit Court, Cook County; John Gibbons, Judge.

Action by John A. Lyons against the Chicago City Railway Company. From a judgment for plaintiff, defendant appealed to the Appellate Court, where affirmance was entered on condition of remittitur, and defendant brings error. Reversed and remanded.S. S. Page and C. Le Roy Brown, both of Chicago (Leonard A. Busby, of Chicago, of counsel), for plaintiff in error.

James C. McShane, of Chicago, for defendant in error.

CARTER, J.

Under an amended declaration, the defendant in error recovered damages of $7,000 in the circuit court of Cook county against the plaintiff in error for injuries alleged to have been sustained February 1, 1908, by being struck by a street car snowplow. On appeal from a judgment of the circuit court, the Appellate Court required a remittitur of $2,500, or the judgment would be reversed, and the cause remanded. That amount was remitted, and judgment entered for $4,500. The case has been brought here by writ of certiorari.

Defendant in error was a practicing physician about 54 years of age. On the evening of the accident, he was making a professional call on the south side, in Chicago, after which he went to Calumet avenue and Sixty-Ninth street to board a street car. There was five or six inches of snow on the ground, and the evidence tends to show that it was at that time snowing and blowing. For the purpose of clearing the snow from the track and roadway on Sixty-Ninth street, plaintiff in error had attached a snowplow rigging to one of its old-fashioned short passenger cars. The plow consisted of a plank about 15 feet long and 18 inches wide, the forward end of which was fastened to the front trucks, and the board extended outward and backward at such an angle that the outer end was about eight or nine feet outside the north rail of the track; an iron bar connecting with the car serving as a brace. Four employés of the plaintiff in error company were upon the car and snowplow attachment assisting in its operation-a motorman, another employé on the front platform with him, a third standing on the snowplow attachment and holding onto the car, and a fourth on the rear platform. Defendant in error waited at the northwest corner of Sixty-Ninth street and Calumet avenue for a passenger car which would carry him west to State street. He mistook this car on its approach for a regular passenger car, and stepped out into the way of the projecting wing or snowplow. He was struck and thrown down. The testimony tended to show that one of his collar bones was broken; that he was bruised, and sustained injuries about the head. The theory of the amended declaration was that the employés of plaintiff in error had an opportunity to see defendant in error on the street, exposed to danger, and neglected to warn him of the danger, and also failed to stop the car in time to avoid the injury.

The testimony of the employés of plaintiff in error on the car tends to show that the car was approaching from the east at a slow rate of speed, averaging about five miles per hour, and as it neared Calumet avenue, throwing the snow to the west and northwest nearly to the curb, defendant in error was seen coming from the north on the west side of Calument avenue; that, when he reached the north side of Sixty-Ninth street, he slowed up in his walk, if he did not entirely come to a stop; that the motorman slowed up the car in order to see what defendant in error intended to do, at the same time striking the bell three or four times, and shouting to defendant in error to look out; that thereupon the speed of the car was increased; that, when its front end was even with the crosswalk, the other employé on the front end shouted to defendant in error to look out, and at the same time the man standing on the plow, on the north side of the car, ‘hollered’ out to him; that the car was stopped just after the snowplow attachment reached the defendant in error.

The evidence of defendant in error was to the effect that when he reached Sixty-Ninth street from the north, on Calumet avenue, there was no car in sight, and he stood there waiting two or three minutes; that he saw a car coming from the east when it was two blocks away; that, when it was about 50 feet distant, he stepped from the sidewalk into the street toward the westbound track; that the car had the appearance of an ordinary street car as it came toward him; that nothing about it, either as to noise or outside appearances, indicated to the contrary; that he walked about six or eight feet from the curb, where he waived his hand for the car to stop; that he did not discover that it was not an ordinary street car until the front part of the car was opposite him, at which time he saw the man standing on the plank, with his head inside the car through an open window; that he thereupon attempted to get out of the way of the plank by jumping; that no one shouted or called to him or gave him any warning, nor was there any ringing of the bell before he was struck by the board; that he had nothing over his ears; that he had never seen a snowplow of that kind before.

The four employés of plaintiff in error and defendant in error himself were the only eyewitnesses of the accident. The evidence on the question of negligence, while conflicting, warranted submitting the case to the jury.

[1]It is first urged that error was committed in the admission of evidence. Dr. Ferguson, a friend of defendant in error, examined him on the night of the injury and attended him during the four days he remained at the hospital. He stated somewhat fully the symptoms and history of the case. He testified, among other things, that he discovered that defendant in error had a bruise on the left side of the face, and that in about three days the left eyeball became bloodshot, and a swelling developed behind the ear in the occipital region, not at the base, but completely behind, the brain; that he complained about his eyesight being impaired; and that he could not hear in the left ear. The doctor was then asked by counsel for defendant in error, ‘Have you any opinion, as a medical man, as to the cause of the conditions you have described in the eye, and the other conditions you have described?’ After an objection to this question, and before he answered, he was asked the question, ‘Have you any opinion, as a medical man, as to what the symptoms indicate?’ Objections were made to this question, which were overruled, and he answered, ‘Yes, sir.’ He was then asked, ‘What is your opinion?’ to which question objections were again made and overruled. His answer was: ‘My opinion of the swelling behind the ear was a local bruising-just a local direct injury. I formed no opinion as to what caused his deafness. I was of the opinion, because of the bloodshot condition--’ At this point objections were made; counsel for plaintiff in error saying: ‘He says now he formed an opinion. He is not answering the question put here. He is going back to another time.’ The objection was overruled, and he was told to finish his answer, when he continued: ‘I formed the opinion that he might have a fracture of the anterior fossa, which is above the eye-a fracture of the bone-for the reason that the injury to the eye (the bloodshot eye appearance) appeared late. It did not appear immediately, as it does after a direct blow. It appearedbetween the third and fourth day.’ After certain discussion between counsel, he continued, ‘I could not have an absolute opinion on that without an X-ray plate showing that fracture of the orbital plate.’ Thereupon counsel for plaintiff in error moved to strike out the answer about the eye and as to his opinion what might have been, as incompetent, irrelevant, and immaterial, and not based on proper evidence. This objection was overruled, and the evidence permitted to stay in the record. It is objected that this evidence way inadmissible, because the witness did not state what his opinion was at the time he testified, but the opinion he had formed a few days after the accident. Counsel for the defendant in error insists that, reading the entire testimony together, it is clear that the witness was giving his opinion, at the time he was testifying, as to what the symptoms he testified about indicated. With this we cannot agree. The witness' opinion at the time of the trial was the only opinion evidence which he could properly give on direct examination. The objection made by counsel for plaintiff in error clearly pointed out that the answer of the witness was defective in this regard. For this reason, if for no other, the answer should have been stricken; and, if the evidence was admissible, the witness should have stated the opinion he then had as to what these symptoms indicated, and not what opinion he formed long previous.

[2] We might not be disposed to reverse for this error alone. There is, however, a more serious objection to the admission of this testimony. It is that the evidence was clearly speculative, and therefore not competent. The general rule is that witnesses should testify to facts and not to opinions. 1 Elliott on Evidence, § 671. The opinions of witnesses are, in general, irrelevant. A learned writer on evidence has said that if it were the rule ‘that witnesses might he allowed to state, not only those matters of fact about which they are supposed to have knowledge,but also the opinions they might entertain about the facts in issue, the administration of...