North Chicago St. R. Co. v. Wrixon

• Decision Date: 19 June 1894
• Citation: 37 N.E. 895,150 Ill. 532
• Parties: NORTH CHICAGO ST. R. CO. v. WRIXON.
• Court: Illinois Supreme Court

150 Ill. 532

37 N.E. 895

NORTH CHICAGO ST. R. CO.

v.WRIXON.¹

Supreme Court of Illinois.

June 19, 1894.

Appeal from appellate court, first district.

Action on the case by Thomas W. Wrixon, administrator of the estate of William P. Wrixon, deceased, against the North Chicago Street-Railroad Company. Plaintiff obtained judgment, which was reduced in amount, and affirmed as to the residue, by the appellate court. Defendant appeals. Affirmed.

Egbert Jamieson and Edmund Furthmann, for appellant.

Arnold Heap and Rosenthal & Hirschl, for appellee.

SHOPE, J.

This was an action by appellee, administrator of the estate of William P. Wrixon, deceased, against appellant, to recover, for the use of next of kin, damages for personal injuries to said William P. Wrixon, alleged to have been caused by the negligence of appellant, which resulted in his death. A trial by jury in the circuit court resulted in a verdict for $5,000. Motion for new trial was overruled, and judgment rendered for that amount. On appeal to the appellate court, a remittitur of $2,500 was entered by the plaintiff, and the judgment affirmed for the residue, of $2,500. The railway company brings the case to this court, and urges two grounds for reversal of the judgment of the appellate court: First. ‘The trial court erred in refusing each and every of the instructions by it refused, asked by defendant.’ Second. ‘The appellate court erred in entering the remittitur, and affirming the judgment of the trial court.’

The instructions which it is urged the court erred in refusing are numbered by counsel, in their brief, as 1, 2, and 3. We are not called upon to determine whether error intervened in the refusal of these instructions or not; but it may be said that the fact of negligence on the part of the defendant, and whether the plaintiff's intestate exercised such reasonable care and caution for his own safety as is usually exercised by children of the same age and degree of intelligence, was submitted to the jury by proper instructions. City of Chicago v. Keefe, 114 Ill. 222, 2 N. E. 267;Railway Co. v. Wilcox, 138 Ill. 370, 27 N. E. 899. These questions of fact are settled adversely to appellant by the judgment of the appellate court, and are not here open to review.

It is, however, urged that the court erred in refusing the instructions numbered 1, 2, and 3. A sufficient answer is that appellant has waived its right to insist upon that error, if error it was. In the abstract filed in the appellate court, and which has been filed by appellee in this court, the refused instructions were not abstracted, and thereby brought to the attention of that court. In the brief of appellant filed in that court, the points urged for reversal are: ‘(1) The verdict in this case is contrary to law. (2) The verdict in this case is contrary to the evidence. (3) The verdict in this case was excessive.’ Each of these points, and none other, was urged as properly raised upon the motion for a new trial in the trial court, and it is expressly stated by counsel, in their brief, that ‘no point is raised on the giving or refusal of instructions.’ Our attention, and that of counsel for appellant, is directly called to these facts, and that the brief and abstract of appellant in the appellate court have been here filed, by the brief of appellee; and no question is made as to the accuracy of these statements, nor is it pretended that any other abstract or brief was filed by appellant in the appellate court, nor does it appear that the question arising upon these instructions was considered by that court. We are justified, therefore, in assuming it to be admitted that, in the appellate court, appellant abandoned any assignments of error upon refusal of the court to give instructions asked by it. That being so, appellant is in no condition to insist upon the error here. A party cannot take the judgment of that court upon a question of fact merely, and waive questions of law arising upon instructions, and, when beaten upon the fact, insist in this court upon error of law which was withdrawn from the consideration of that court. To permit such practice would be unfair to the appellate court, would entail unnecessary expense upon the parties litigant, and incumber the dockets of the courts with unnecessary litigation.

The only question raised by counsel, properly before us, is whether the appellate court erred in entering a remittitur at the instance of plaintiff below. Upon consideration of the case, that court entered judgment, January 11, 1894, reversing and remanding the cause. On January 15, 1894,-being one of the days of the same term of that court,-appellee moved that the order of reversal and remandment theretofore entered be set aside, and at the same time filed a remittitur of $2,500 of the judgment. Thereupon, the court set aside and vacated its former order and judgment, and entered a judgmentaffirming that of the court below, for the sum of $2,500, and rendered judgment for said amount in favor of appellee and against appellant, and for costs, etc. It is insisted that, in actions where the recovery is of unliquidated damages, a remittitur may not be entered, and the error existing in the verdict and judgment, because it is excessive, thereby be cured. The difficulty of settlement of this question upon principle is fully recognized, but we are committed to the practice of allowing remittitur, in actions ex delicto, both in the trial and appellate courts, to such sum as shall to the court seem not excessive, and affirming as to the balance of the judgment. By sect on 31 of the practice act the entry of remittitur in the appellate courts is authorized.

It may not be amiss to here collate some of the leading cases in this state upon the question: Thomas v. Fischer, 71 Ill. 576, was an action on the case, for slander. The jury returned verdict for $1,600, and, on motion for new trial, plaintiff remitted one-half, and judgment was entered on the verdict for the balance,-$800. It was there insisted that, by the remittitur, plaintiff conceded the verdict to be unjust, etc., and that the defect was not cured thereby, but that the error could be...