The Chicago v. Lammert

Citation12 Ill.App. 408,12 Bradw. 408
PartiesTHE CHICAGO AND ALTON RAILROAD COMPANYv.HENRY LAMMERT, by next friend, etc.
Decision Date28 February 1883
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Madison county; the Hon. WILLIAM H. SNYDER, Judge, presiding. Opinion filed April 13, 1883.

Messrs. WISE & DAVIS, for appellant; that the right of the son to recover can not be abridged or extended by the financial circumstances of his parents, cited Gavin v. Chicago, 97 Ill. 70; C. & A. R. R. Co. v. Gregory, 58 Ill. 226.

Where a parent sues for injury to child, he can only recover compensation for loss of services, medical attendance, etc. The personal suffering and permanent injury sustained by the child must be the subject of an action brought by the child himself: 2 Sedgwick on Measure of Damages, 520; H. & G. N. R. R. Co. v. Miller, 49 Tex. 322; Sawyer v. Sawyer, 10 Kan. 519; Sykes v. Lawler, 49 Cal. 236; 2 Thompson on Negligence, 1260; Karr v. Parks, 44 Cal. 46; Dennis v. Clark, 2 Cush. 347; Schouler on Domestic Relations, 251; Redfield on Negligence, § 608; Traver v. Eighth Av. R. R. Co. 6 Abb. (N. S.) 46; Gilligan v. Harlem R. R. Co. 1 Smith, 453; Oakland R. R. Co. v. Fielding, 48 Penn. 320; Penn. R. R. Co. v. Kelley, 31 Penn. 372.

An agency can not be proved by the mere statement of the alleged agent: Whiteside v. Margaret, 51 Ill. 507; Maxey v. Heckethorn, 44 Ill. 437; Linbloom v. Ramsey, 75 Ill. 246; Reynolds v. Ferree, 86 Ill. 570.

Where a declaration proceeds for one cause of action, plaintiff can not recover by proving another and different cause of action: C. & A. R. R. Co. v. Michie, 83 Ill. 427; Carmichael v. Reed, 45 Ill. 108; Guest v. Reynolds, 68 Ill. 478; C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; Tracey v. Rodgers, 69 Ill. 662; T. W. & W. R'y Co. v. Beggs, 85 Ill. 80; Bloomington v. Goodrich, 88 Ill. 558; Hilliard's Remedies for Torts, 159 § 9 et seq;Moss v. Johnson, 22 Ill. 633; I. C. R. R. Co. v. McKee, 43 Ill. 120; Poleman v. Johnson, 84 Ill. 269.

The verdict is against the weight of evidence: C. & A. R. R. Co. v. McLaughlin, 47 Ill. 265; C. B. & Q. R. R. Co. v. Stump, 55 Ill. 367; O. & M. R'y Co. v. Stratton, 78 Ill. 88; I. C. R. R. Co. v. Slatton, 54 Ill. 136; I. C. R. R. Co. v. Able, 59 Ill. 131; C. & N. W. R'y Co. v. Scates, 90 Ill. 586.

To make the master liable for servant's negligence, such negligence must be within the scope of the latter's employment: Wheaton on Negligence, § 162; Shearman and Redfield on Negligence, § 62; Redfield on Negligence, § 63; Oxford v. Peter, 28 Ill. 434; Johnson v. Barber, 5 Gilm. 425; Armstrong v. Cooley, 5 Gilm. 509; Fleming v. Brooklyn City R. R. Co. 1 Abb. N. C. 433; Eaton v. Delaware & L. & W. R. R. Co. 57 N. Y. 383; C. &. A. R. R. Co. v. Michie, 83 Ill. 427; Flower v. Penn. R. R. Co. 69 Penn. 210.

There is no recovery where an infant is injured and the defendant is unaware of his being on or about the train and defendant is using ordinary care under the circumstances: Phila. etc. R. R. Co. v. Hummell, 44 Penn. 375; Osterag v. Pacific R. R. Co. 36 Mo. 421; Boland v. Mo. & R. R. Co. 36 Mo. 413; Buyler v. Albany, 42 N. Y. 459; Meeks v. S. P. R. R. Co. 52 Cal. 602.

As to the rule of comparative negligence: C. B. & Q. R. R. Co. v. Johnson, 103 Ill. 512.

Messrs. METCALF & BRADSHAW, for appellee; that the objection to the mother's testimony of her means of gaining a livelihood is untenable, cited C. & A. R. R. Co. v. Gregory, 58 Ill. 226.

It was the duty of the engineer to stop the train on being signaled to do so by the brakeman, and the duty of the brakeman to warn the child of danger when he saw him on the platform of the mill: Shearman & Redfield on Negligence, § 493; C. B. & Q. R. R. Co. v. Triplett, 38 Ill. 482; I. C. R. R. Co. v. Hutchinson, 47 Ill. 408.

A change of circumstances from the possession of capacity in the trespasser to avoid danger, to a want of it, would create a corresponding change of duty in appellant's employes: Phila. & Reading R. R. Co. v. Spearen, 47 Penn. 300; P. F. W. & C. R. R. Co. v. Bumstead, 48 Ill. 221.

Objections to incompetent evidence must be specifically and aptly made: Russell v. Whiteside, 4 Scam. 7; Sargent v. Kellogg, 5 Gilm. 273; Swift v. Whitney, 20 Ill. 144; Conway v. Case, 22 Ill. 127; Clevenger v. Dunaway, 84 Ill. 367; C. & A. R. R. Co. v. Morgan, 69 Ill. 492; Wilson v. King, 83 Ill. 232.

BAKER, P. J.

Action on the case for personal injuries, in which there was verdict and judgment for appellee for $5,000.

Objections are urged to some of the rulings of the court with reference to the admissibility of testimony, and these may briefly be considered.

There was no error in permitting Mary Staid, mother of appellee, who was a witness for him, to state she had lived in Venice sixteen years and made a living by keeping boarders. These preliminary questions as to age, residence and occupation are quite usually asked and are not considered objectionable. Indeed, the answers to them frequently serve a useful purpose by affording court, jury and the opposite party and his attorneys the means of identifying the witness, and also forming some idea with reference to the credit due from his or her position in society and surroundings. It was erroneous, however, to permit this witness to testify with regard to the expenses she had sustained in attending to and waiting on appellee, her infant son, as these expenses would not be recoverable in this action. The child, if injured by appellant's fault, would properly have satisfaction in this suit for the pain, suffering and permanent injury; and the parent would have a right of action to recover compensation for loss of service and necessary expenses. The inclusion here of these expenses, would not bar her from obtaining remuneration for them in a different suit, and thus there might be a double recovery.

Considering the wide range the examination in chief of the witness Thomas had taken, and the latitude the court may in its discretion allow a cross-examination, we are inclined to hold the cross-interrogatories and answers excepted to were not improperly allowed to be read to the jury. Some of them, however, hardly seem to be germane to the issue.

Over the objections of appellant, Stites and Wilson, witnesses for appellee, were permitted to detail a conversation between one Tracey and said Stites, that occurred a year or more after the transactions involved in this controversy. It nowhere appears said Tracey was an agent of appellant, much less that he had authority to bind appellant by the statements and acts in question, that they were within the scope of his duty or employment. Chicago City R'y Co. v. McMahon, 103 Ill. 485, has no application to the facts of this case. This testimony was but hearsay, and should have been excluded.

It appears that Stites, the principal witness, had, a very few days after appellee was injured, signed a written statement of the occurrence, connected therewith, that was in conflict, on some material points, with the account he gave upon the witness stand. It was entirely proper to permit him to make an explanation, and due him he should have an opportunity. It was equally due appellant it should have been allowed to obtain on cross-examination an admission he had intentionally made a statement that was not true. The credibility of this witness, as of all others, was a question for the jury, and appellant was entitled to a concession from the witness himself he had intentionally made a false statement for purposes of deception. The ruling of the court on this point was wrong.

The second instruction given for appellee improperly directs the jury, in estimating plaintiff's damages, to take into consideration “the expense, if any, that plaintiff was put to in medical bills or other expenses, if the jury believe from the evidence there were such bills and expenses.” Appellee was a minor, wholly supported by his widowed mother, and the evidence shows the expenses devolved on and were paid by her, and that no pecuniary outlay whatever had been imposed on him. The jury could only have understood this instruction as a license from the court to include in the assessment her expenditures occasioned by the injury, as there was no proof before them of expenditures other than these.

Appellee's third instruction is erroneous in several respects. It informs the jury appellant is liable if appellee was hurt through the negligence of its employes while they were performing services within the scope of their employment. This is stated in general terms, and without any qualification or limitation whatever. The right of recovery should have been confined to the specific negligences and causes of action alleged in the declaration. The verdict may have been based upon an element of liability not involved in the case. There is, incidentally, in this record, testimony as to other supposed negligence not within the scope of the pleadings. C. C. & I. C. R'y Co. v. Troesch, 68 Ill. 545; Camp Pt. Mfg. Co. v. Ballou, 71 Id. 417; E. St. L. P. & P. Co. v. Hightower, 92 Id. 139.

Again, each count of the declaration avers appellee was exercising due care on his part when he was injured. The instruction wholly ignores the requirement appellee himself was exercising ordinary and reasonable care, unless it be held as matter of law the facts he was “about ten years of age and deaf and dumb,” which are stated therein as facts precedent to a right of recovery, are conclusive he did exercise due care. But it is not an irrebuttable legal presumption that a deaf and dumb child ten years of age is wholly incapable of reasoning, of appreciating danger, and of exercising any degree of care whatever, and therefore is incapable of negligence and incapable of being a juridical cause of an injury. It must necessarily be a question of fact, and one to be submitted to the jury as such. Schmidt v. Sinnott, 103 Ill. 160.

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