Sandy v. Lake St. Elevated R. Co.

• Decision Date: 18 June 1908
• Citation: 85 N.E. 300,235 Ill. 194
• Parties: SANDY v. LAKE STREET ELEVATED R. CO.
• Court: Illinois Supreme Court

235 Ill. 194

85 N.E. 300

SANDY

v.LAKE STREET ELEVATED R. CO.

Supreme Court of Illinois.

June 18, 1908.

Appeal from Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; Homer Abbott, Judge.

Action by Alfred C. Sandy, prosecuted after his death by Sarah J. Sandy, his executrix, against the Lake Street Elevated Railroad Company. From a judgment of the Appellate Court, affirming a judgment for plaintiff, defendant appeals. Affirmed.Clarence A. Knight and William G. Adams, for appellant.

Hiram Blaisdell and Frazier & Ziv, for appellee.

FARMER, J.

This suit was brought in the circuit court of Cook county by Alfred C. Sandy to recover damages he claimed to have sustained from injuries received by him in a collision of two trains on appellant's elevated railroad. The declaration consisted of two original and six additional counts, but before the case was submitted to the jury at the trial the second original, and the second, third, fourth, and sixth additional counts were withdrawn and the case was submitted on the first original and the first and fifth additional counts. The first original and the second additional counts charged appellant with negligence, generally, in the management, control, and operation of its trains, whereby one of its said trains ran into and struck another of its trains upon which plaintiff was riding, and seriously injured him. The fifth additional count charged the negligentmanagement and operation of appellant's trains, and running them at a fast, imprudent, reckless, and immoderate rate of speed, whereby the collision occurred, seriously injuring the plaintiff. The counts dismissed were based on other charges of negligence. A trial by jury resulted in a verdict for the plaintiff for $12,500. After a remittitur of $3,500 by plaintiff, the court rendered judgment in his favor for $9,000, from which judgment the defendant below prosecuted an appeal to the Appellate Court. That court affirmed the judgment of the trial court, and defendant has prosecuted a further appeal to this court.

While the appeal was pending in the Appellate Court plaintiff below died, and his executrix was substituted as a party to the suit in his stead, and she is the appellee in this court. For the sake of convenience, we will use the term plaintiff, instead of appellee, in the discussion of the case.

It is first contended that the court erred in allowing a remittitur and in not granting a new trial. The jury returned a verdict in plaintiff's favor for $12,500. On the hearing of the motion for a new trial, the trial judge expressed his doubts as to whether all the physical conditions plaintiff complained of as resulting from his injury resulted from said injury, and announced his disinclination to render judgment on the verdict for the full amount. Plaintiff remitted $3,500 from the amount of the verdict, and the court thereupon rendered judgment for $9,000. Appellant contends that the court disagreed with the jury upon a question of fact, namely, whether plaintiff's ills all resulted from the injury sustained in the collision, and that it was therefore the duty of the court to set aside the verdict and grant a new trial. That the plaintiff was seriously injured and suffered great pain is abundantly proven by the evidence. The medical witnesses testified he suffered from neuritis, neurasthenia, and diabetes after the injury. As to whether all these resulted from the injury the evidence was conflicting, plaintiff's evidence tending to show that they did, while defendant's evidence tended to show that diabetes might have existed before the accident. A general verdict was returned by the jury finding defendant guilty and assessing the plaintiff's damages at $12,500. While it appears the trial judge was of opinion the damages were assessed too high, he agreed with the jury as to plaintiff having sustained serious injuries and as to appellant's liability therefor, but it was his judgment that a less sum than that awarded by the jury would afford plaintiff just and adequate compensation. Remittiturs, in actions ex delicto, by the trial and Appellate Courts, have been approved by this court a number of times. Chicago City Railway Co. v. Gemmill, 209 Ill. 638, 71 N. E. 43, and cases there cited; Hanchett v. Haas, 219 Ill. 546, 76 N. E. 845. There are cases of such character that it would be difficult, if not impossible, to determine what amount should be remitted from a verdict, but the practice of allowing remittiturs in cases of the character of the one at bar has long been sustained in this state. In North Chicago Street Railroad Co. v. Wrixon, 150 Ill. 532, 535, 37 N. E. 895, 896: ‘But we are committed to the practice of allowing remittiturs 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.’

In Chicago City Railway Co. v. Gemmill, supra, the verdict was for $12,500, and the court required the plaintiff to remit $6,500 and rendered judgment on the verdict for $6,000. The judgment was affirmed by the Appellate Court. Allowing the remittitur was assigned as error in this court, and the decision of this court in Loewenthal v. Streng, 90 Ill. 74, a suit for malicious prosecution where a verdict for $10,000 was returned and a remittitur of $4,000 allowed, was relied on by the appellant. Referring to that case, we said (page 642 of 209 Ill.,page 45 of 71 N. E.): ‘It was there said that, where a verdict is so flagrantly excessive as to be only accounted for on the ground of prejudice, passion, or misconception, a remittitur will not cure the verdict. When that case was decided, this court in that class of cases reviewed questions of fact as well as of law, which is not the case since the organization of the Appellate Courts.’ The court quoted with approval from North Chicago Street Railroad Co. v. Wrixon, supra. In West Chicago Street Railroad Co. v. Musa, 180 Ill. 130, 54 N. E. 168, after a remittitur of $500 in the Appellate Court, the judgment of the trial court was affirmed. One of the contentions of appellant on the appeal was that counsel for the plaintiff on the trial improperly indulged in remarks to the jury calculated to unduly increase the award of damages. This court sustained the action of the Appellate Court in allowing the remittitur and affirming the judgment, and said (page 132 of 180 Ill., and page 169 of 54 N. E.): ‘It was the province of the Appellate Court to consider and determine whether, in view of the facts of the case, the damages were excessive, and the action taken by that court in requiring a remittitur in the sum of $500 and taxing the costs in that court to the appellee removed all just ground of complaint as to the course pursued by counsel.’ In Chicago & Alton Railroad Co. v. Lewandowski, 190 Ill. 301, 60 N. E. 497, this court approved the action of the Appellate Court in allowing a remittitur of $4,500 from a verdict and judgment in the lower court for $10,500. In City of Elgin v. Nofs, 212 Ill. 20, 72 N. E. 43, after a remittitur of $5,000 in the Appellate Court, that court affirmed the judgment of the trial court in the sum of $15,000. This court sustained the action of the Appellate Court as to the remittitur, but held appellee should have been required to pay all costs of the appeal instead of one-half thereof, as adjudged by the Appellate Court. In that case we said (page 25 of 212 Ill., and page 45 of 72 N. E.): ‘Appellant argues at great length that the judgment is grossly excessive and is the result of passion and prejudice, and insists that that question is open for the consideration of this court, and in support of its contention cites Illinois Central Railroad Co. v. Ebert, 74 Ill. 399,Loewenthal v. Streng, 90 Ill. 74, and numerous cases from the Appellate Court of this state wherein judgments have been reversed upon the ground here contended for. But appellant seems to overlook the fact that the two cases cited from this court were cases brought directly to this court from the trial court, when this court, as the Appellate Court now may do, could consider the evidence and could reverse upon the ground that the judgment was excessive; but, since the Appellate Court was established and the laws regulating the appeals from that court have limited this court to the consideration of questions of law only, we are not now permitted to enter into a discussion of and base our action upon matters of fact.’ In our opinion the action of the trial court in allowing the remittitur and rendering judgment for the balance affords no sufficient ground for a reversal by this court.

It is contended by appellant that the court erred in giving instructions 1, 2, and 3 on behalf of appellee. The first instruction was. ‘You are instructed that a common carrier of passengers, through its servants in charge of its cars, is required to do all that human care, vigilance, and foresight can...