Shaughnessy v. Holt
Decision Date | 03 December 1908 |
Citation | 236 Ill. 485,86 N.E. 256 |
Parties | SHAUGHNESSY v. HOLT. |
Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Arthur H. Frost, Judge.
Action by Mary Shaughnessy against George H. Holt. From a judgment of the Appellate Court (140 Ill. App. 572) affirming a judgment of the superior court for plaintiff, defendant appeals. Reversed and remanded.
John E. Kehoe, F. J. Canty, and R. J. Folonie, for appellant.
Burth & Keefe and Francis J. Woolley, for appellee.
Appellee recovered a judgment of $7,500 in the superior court of Cook county for personal injuries alleged to have been sustained by her while a passenger in appellant's elevator, October 9, 1902. This judgment, on appeal, was affirmed by the Appellate Court, and the case is now appealed to this court. Appellee was employed as a stenographer on the twelfth floor of the Manhattan building, in Chicago, owned by appellant. The evidence in her behalf tended to show that she entered one of the elevators in that building on the ground floor to go to the twelfth floor, and that, as it passed the tenth floor, some one signaled for the car to stop, and the elevator man attempted to return to the tenth floor, but the car would not stop and went on down to the main floor, where it struck with a thud and rebounded a short distance. Appellant's testimony tended to show that appellee entered the car on the twelfth floor, and that the elevator descended to between the second and third floors, when the elevator man, as was his custom, tried to pull the operating cable, in order to reduce the speed before the car came in contact with the automatic stopping device at the main floor; that he found it impossible to move the cable, and that the car continued its descent at full speed, striking the automatic device and rebounding about a foot. In the meantime the safety dogs were released, and the car, after rebounding, was held about a foot above the floor. In order to prevent the blistering of their hands, the operators were accustomed to use short pieces of common garden hose around the operating cable. One of these had apparently fallen from the car, and become wedged between the cable and a grooved wheel around which it ran at the bottom of the shaft, thus preventing the proper operation of the machinery.CARTER, J. (after stating the facts as above).
Appellant contends that there was no valid declaration upon which a recovery could be had. Each of the first three counts of the original declaration, after stating the negligence, concluded, ‘by means whereof the plaintiff was then and thereby injured, as hereinafter set forth.’ The original fourth count, to which the quotation from the first three counts above given referred, was stricken out by order of court March, 1905, and the motion of appellee for leave to file an amended fourth count denied. It is insisted that the three remaining counts contained no allegation that appellee suffered injury to her person. On February 4, 1906, the appellee filed additional counts to the declaration. Such counts stated no new cause of action, but each merely alleged, in a more accurate and legal manner, the same damages that were averred in the original fourth count. It is insisted by the appellant that, the fourth count having been stricken, it was out of the case for all purposes (Slack v. Harris, 200 Ill. 96, 65 N. E. 669), and could not be used as a basis for the additional counts, or be made a part of the three original counts by reference. Under the authority of North Chicago Street Railroad Co. v. Aufmann, 221 Ill. 614, 77 N. E. 1120,112 Am. St. Rep. 207, this fourth count furnished sufficient basis for the additional counts filed. After the count was stricken out, while no longer, in legal contemplation, a pleading in the case, it still remained on file as a part of the record. Abbott v. Douglass, 28 Cal. 295. It is a mere figure of speech to say that the count is stricken out. Even when a section of the statute has been held to be unconstitutional, it may still be considered with the other sections for the purpose of construction. Baird v. Hutchinson, 179 Ill. 435, 53 N. E. 567. The original fourth count was still a part of the declaration for reference purposes.
The appellee claims that, by reason of the violence with which the elevator struck and rebounded, the head of the tibia-the large bone of the lower part of the leg-was split or broken, and that the nervous shock produced insomnia and trouble with her eyes, and inability to detect sensations on part of her left leg; that the shock of striking at the bottom of the shaft caused a displacement of her female organs. Three physicians, who testified for appellee, stated that they had made tests on her person by taking two test tubes, putting hot water in one and cold water in the ohter, and that they touched with the test tubes different parts of her skin, and she did not always answer correctly which tube was hot and which was cold; that there was a lack of sensitiveness in one leg; that such symptoms showed a deterioration of her nervous system, indicating nervous prostration or neurasthenia. All of these physicians made their tests very shortly before the case was called for hearing, apparently for the purpose of testifying at such hearing. It is insisted by appellant that this testimony was based on self-serving statements of appellee, and was therefore incompetent and inadmissible. It is the established rule in this state that the declarations of the injured party in a case like this, when made as a part of the res gestae, or to a physician during treatment, or upon an examination prior to, and without reference to the bringing of, an action to recover damages for the injury complained...
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