North Chicago St. R. Co. v. Cook

• Decision Date: 31 March 1893
• Parties: NORTH CHICAGO ST. R. CO. v. COOK.
• Court: Illinois Supreme Court

145 Ill. 551

33 N.E. 958

NORTH CHICAGO ST. R. CO.

v.COOK.¹

Supreme Court of Illinois.

March 31, 1893.

Appeal from appellate court, first district.

Action by Egbert C. Cook against the North Chicago Street-Railroad Company to recover damages for personal injuries. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.

Edmund Furthmann, W. J. Hynes, and H. H. Martin, for appellant.

Saml. W. Packard, for appellee.

The other facts fully appear in the following statement by SHOPE, J.:

The appellee, 78 years old and infirm, being a partial paralytic, standing at a street corner, signaled to appellant's cars to stop and take him on. The cars passed him a short distance, and stopped to let a passenger off. Persons on the rear platform beckoned to appellee to come on, whereupon he hobbled along, and caught hold of the hand rail of the car, and, before he could step up on the step of the car, the car suddenly started, by which he was pulled off his feet, thrown to the ground, his arm broken, and he was otherwise injured. The conductor denies that he gave any signal to start the cars, and the evidence raises the presumption that some one-a passenger, probably-did give such signal. The conductor, at the time, was on or near the front platform, collecting fares, and, as soon as the injury to appellee occurred, the car was stopped, and he ran back to where appellee was lying, and with the aid of passengers carried him into an adjacent drug store. The jury returned a verdict, and judgment was entered thereon, for $1,625. On appeal to the appellate court this judgment was affirmed, and the railroad company prosecutes this further appeal.

SHOPE, J., (after stating the facts.)

Upon looking into this record to determine whether the instructions were substantially accurate, as applied to the facts, we are led to agree with the appellate court that if, ‘under the evidence shown in this record, had there been a judgment for the defendant, it would have been our duty to set it aside.’ Counsel have filed in this court their appellate court briefs, containing a discussion of the questions of fact which are eliminated by the judgment of that court. Numerous objections are made to the instructions given, and to the ruling of the court in admission of testimony, the more important of which will be considered.

1. It is insisted that the court erred in giving appellee's instruction in respect to the measure of damage, which is as follows: ‘In estimating the plaintiff's damages, if the jury find for the plaintiff, it is proper for the jury to estimate the effect of the injury in the future upon the plaintiff's health, if any, as well as the effect it has had upon him already, and the bodily pain and suffering, if any, endured by him, including the necessary expenses and all damages, present and prospective, which can be treated as a necessary result to the injury, if any, inflicted by the defendant upon the plaintiff.’ The objection is that the jury are allowed, in case they found for appellee, to award him damage for ‘necessary expenses' in and about being healed, etc. The evidence showed that appellee had an arm broken and was otherwise injured; that a physician attended him in setting the bone of the arm, for which he was paid; and also that another physician attended him during his illness following the injury; but there is no evidence as to the amount paid, or what would be a reasonable charge, for the services rendered. We are of opinion that it was error to give the instruction, in the absence of all proof tending to show the proximate amount or value of said services. Shear. & R. Neg. 759; Reed v. Railroad Co., 57 Iowa, 23, 10 N. W. Rep. 285;Duke v. Railway Co., 99 Mo. 347, 12 S. W. Rep. 636; Eckerd v. Railway Co., 70 Iowa, 353, 30 N. W. Rep. 615; Railroad Co. v. Frelka, 9 Ill. App. 605;Joliet v. Henry, 11 Ill. App. 154; Railroad Co. v. Hale, 83 Ill. 360.But we are of opinion, also, that while the instruction, standing alone, was erroneous, the giving of it, in connection with the series of instructions given, was not prejudicial error. By repeated instructions the jury were told that their findings must be from the evidence; and in an instruction given on behalf of appellant the jury were told that, if they should find for the plaintiff, no exemplary or punitive damages ‘can be allowed.’ ‘All that the jury would have a right to consider would be simply compensatory damages; * * * that is to say, the damages should be purely compensatory, and the basis for estimating it must be data appearing in the evidence, and not mere conjecture.’ It was the duty of the jury to consider the instructions as a whole, and give due and proper weight to each of them, and it is presumed they did so. 2 Thomp. Trials, § 2407. If the instructions, when construed together, present the law with substantial accuracy to the jury, and the objectionable instruction is so qualified by others that it is not calculated to mislead them, it will ordinarily afford no ground for reversing the judgment. Id.; Spies v. People, 122 Ill. 245, 12 N. E. Rep. 865, and 17 N. E. Rep. 898; Railway Co. v. Ingraham, 77 Ill. 309;Kendall v. Brown, 86 Ill. 387;Skiles v. Caruthers, 88 Ill. 458; Railroad Co. v. Hines, 132 Ill. 169, 23 N. E. Rep. 1021. Without proof of the value of the medical attendance, medicine, etc., nominal damages only could have been awarded; that is, no data would have been furnished by the evidence for awarding other than a nominal sum. There is nothing in this record to indicate that the jury were misled, or gave damages other than such as were purely compensatory, having for their basis data appearing in the evidence, or that they were led into the field of conjecture.

2. It is also insisted that the court erred in giving the following instruction: ‘If the jury believe from the evidence that some person not in...