United States Brewing Co. v. Stoltenberg

• Citation: 211 Ill. 531,71 N.E. 1081
• Parties: UNITED STATES BREWING CO. v. STOLTENBERG.
• Decision Date: 24 October 1904
• Court: Supreme Court of Illinois

211 Ill. 531

71 N.E. 1081

UNITED STATES BREWING CO.

v.STOLTENBERG.

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Appellate Court, First District.

Action by Henry M. Stoltenberg, as administrator of John F. McHale, against the United States Brewing Company. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Affirmed.F. J. Canty and E. E. Gray (J. C. M. Clow, of counsel), for appellant.

Alexander Sullivan (Francis J. Woolley, of counsel), for appellee.

This is an action on the case, brought on January 6, 1902, in the circuit court of Cook county by appellee, as administrator of John F. McHale, deceased, and against appellant to recover damages for injuries to the deceased, resulting in his death, alleged to have been caused by the negligence of the appellant. The plea of the general issue was filed. The jury returned a verdict in favor of the appellee for $5,000, and judgment was entered for that amount upon the verdict. Upon appeal to the Appellate Court the judgment has been affirmed, and the present appeal is prosecuted from such judgment of affirmance.

The facts are substantially as follows: John F. McHale, at the time of his death, was a little boy about four years old, and was killed on August 27, 1901, by being run over by one of appellant's wagons. The accident happened on Leavitt street, in Chicago, from 25 to 75 feet north of Huron street; Leavitt street running north and south, and being crossed by Huron street which runs east and west. A driver named Fred Fischer, a servant of the appellant, was driving the wagon, which inflicted the injury, north upon Leavitt street; and the boy was struck by the wagon after it had crossed Huron street. On the northeast corner of this street intersection is a grocery store, in front of which, and close to the curb, stood a grocery wagon without any horse attached to it, the box of which was 3 feet and 7 inches in width. Some children were playing on the street and the east sidewalk north of the wagon. It seems that a street car line formerly had its tracks in Leavitt street, but the tracks had been removed, and the space formerly occupied by them had been filled with cobble stones and gravel. The wagon, which was on its way to the appellant's barn, was loaded with bottles and drawn by a team of mules. The deceased was playing in the street towards the middle of it gathering up pebbles from the abandoned trackway. The driver was driving his team at a rapid rate around the corner of Leavitt and Huron streets and northward on Leavitt street in the space formerly occupied by the street car rails. The evidence shows that the driver, at the time of the accident, was talking to his son, a little boy, sitting on the seat with him, and looking down at the boy with his face turned towards the west. He was laughing or joking with the boy upon the seat with him. He did not see the deceased, or know that he had run over him, until one of the witnesses herein called to him to stop. Both the east wheels of the wagon ran over the child. The father of the child was away at work, and its mother was washing clothes. The evidence tends to show that the child, a few minutes before it was killed, had left its mother to go into the back yard, and that the back yard was entirely closed, and the gates were fastened.

The theory of the appellant is that, just as the team was opposite the grocery wagon, the deceased suddenly ran from behind the grocery wagon, and was struck by the appellant's wagon, and run over and killed. The evidence of appellee tended to show that the child was in plain sight of the driver, and that, had the latter looked at the objects ahead of him, he would have avoided injuring the child. Two other of the children ran back, but the deceased tripped and fell, and the wagon ran over him before he could get up. Some of the testimony of the appellee tended to show that the appellant's wagon was going at the rate of from 10 to 15 miles an hour; other witnesses put the speed at from 10 to 12 miles per hour, and others at from 8 to 10 miles per hour. The evidence of the appellant tended to show that the appellant's wagon was proceeding north on an ordinary trot, and at a speed not to exceed 4 or 5 miles an hour.

MAGRUDER, J. (after stating the facts).

First. The first ground, urged by the appellant in favor of the reversal of the judgment, is that certain instructions given for the appellee were erroneous.

The first instruction is said to be erroneous because it tells the jury that, if they ‘find from the evidence that the plaintiff has made out his case by a preponderance of the evidence, as alleged in the declaration, then the jury should find the defendant guilty,’ etc. The objection made to the instruction is that it uses the words ‘as alleged in the declaration.’ This form of instruction has been approved by this court in a number of cases, and it is unnecessary to repeat what is said in those cases. Pennsylvania Co. v. Marshall, 119 Ill. 399, 10 N. E. 220;Central Railway Co. v. Bannister, 195 Ill. 48, 62 N. E. 864;West Chicago Street Railroad Co. v. Scanlan, 168 Ill. 34, 48 N. E. 149;Chicago City Railway Co. v. Carroll, 206 Ill. 318, 68 N. E. 1087;City of La Salle v. Kostka, 190 Ill. 130, 60 N. E. 72;Mt. Olive Coal Co. v. Rademacher, 190 Ill. 538, 60 N. E. 888;North Chicago Street Railroad Co. v. Polkey, 203 Ill. 225, 67 N. E. 793;West Chicago Street Railroad Co. v. Lieserowitz, 197 Ill. 607, 64 N. E. 718;Laflin & Rand Powder Co. v. Tearney, 131 Ill. 322, 23 N. E. 389,7 L. R. A. 262, 19 Am. St. Rep. 34;Ohio & Mississippi Railway Co. v. Porter, 92 Ill. 437.

Instruction numbered 4 is claimed to be erroneous for the same reason as instruction numbered 1, and the objection to it is answered by the authorities above referred to. The same authorities also answer the objection made to the third instruction given for the appellee, the language used in that instruction stating that ‘plaintiff has sustained damages, as charged in the declaration,’ etc. The only difference is that the word ‘charged’ is used instead of the word ‘alleged.’ We do not consider that the use of the one word instead of the other takes the third instruction out of the reasoning of the authorities above referred to.

Appellant claims that the second instruction, given for the appellee, is erroneous. That instruction is as follows: ‘If you find a verdict in favor of plaintiff, you are not confined in assessing the damages to the pecuniary value of the services of the deceased child to his next of kin until he would have arrived at the age of 21, but the jury may consider the pecuniary benefit which the next of kin might have derived from said deceased, had he not been killed, at any age of his life.’ This instruction is exactly the same as an instruction, which was approved by this court in the case of Baltimore & Ohio Southwestern Railway Co. v. Then, 159 Ill. 535, 42 N. E. 971. The only difference between the instruction in the Then Case and that in the case at bar is that, in the former, the words ‘may have derived’ are used, while in the latter the words ‘might have derived’ are used. The difference between the two instructions is a mere matter of grammar, and does not affect the meaning. The instruction in the Then Case was referred to with approval in the recent case of North Chicago Street Railroad Co. v. Johnson, 205 Ill. 32, 68 N. E. 463. It is unnecessary to repeat the views, expressed in regard to this instruction in the case of Baltimore & Ohio Southwestern Railway Co. v. Then, supra.

Complaint is made by the appellant of the fifth instruction, given for the appellee, upon the ground that it authorizes the jury to act upon circumstantial evidence. The language of the instruction is as follows: ‘While the plaintiff must prove his case by a preponderance of evidence, still the proof need not be the direct evidence of persons who saw the occurrence sought to be proved, but facts may also be proved by circumstantial evidence, that is, by proof of circumstances, if any, such as give rise to a reasonable inference in the minds of the jury of the truth of the facts alleged and sought to be proved, provided such circumstances, together with all the evidence in the case, constitute a preponderance of evidence.’

There was no error in...