West Chicago St. R. Co. v. Lieserowitz

• Decision Date: 19 June 1902
• Citation: 197 Ill. 607,64 N.E. 718
• Parties: WEST CHICAGO ST. R. CO. v. LIESEROWITZ.
• Court: Illinois Supreme Court

197 Ill. 607

64 N.E. 718

WEST CHICAGO ST. R. CO.

v.LIESEROWITZ.¹

Supreme Court of Illinois.

June 19, 1902.

Appeal from appellate court, First district.

Action by Fannie Lieserowitz against the West Chicago Street Railroad Company. From a decision of the appellate court affirming a judgment for plaintiff (99 Ill. App. 591), the defendant appeals. Affirmed.John A. Rose and Louis Boisot (W. W. Gurley, of counsel), for appellant.

Moses, Rosenthal & Kennedy, for appellee.

This is an action on the case, originally brought on February 6, 1893, by appellee, then a minor, by her next friend, Louis Lieserowitz, against the appellant company, to recover damages for an injury received by appellee, and alleged to have been caused by the appellant's negligence. The injury occurred on January 24, 1893, while the appellee was a minor between 12 and 13 years of age. The declaration consists of one count, and alleges that appellant was operating lines of street railroad on State street, Randolph street, and other streets, with cars drawn by horses in charge of its servants, and used in the carriage of passengers for hire; that on January 24, 1893, appellee was, with all due care and diligence on her part, a passenger upon one of said cars, to wit, a South Halsted street car, to be safely carried to her place of destination for a certain reward in that behalf paid to appellant; that while she was attempting to alight from said car at the intersection of State and Randolph streets, having first requested the servants of appellant to stop the car at said intersection to allow her to alight, the appellant, by its servants, negligently, carelessly, and improperly failed and neglected to stop said car a sufficient length of time to allow her to alight, and caused the car to be suddenly and violently started, by reason whereof plaintiff was thrown with great force and violence from said car to the ground, and greatly bruised and injured, and became sick, sore, lame, disordered, and permanently injured, etc., and so remained, and was hindered and prevented thereby from transacting her business and affairs. The appellant below pleaded the general issue, and by agreement the cause was submitted to the court for trial without a jury. At that trial the court found the appellant guilty, and assessed the damages at the sum of $50, and judgment was entered on the finding, and satisfied in full in open court. Subsequently, one Simon Lieserowitz, as next friend of the appellee, filed a bill in chancery in the circuit court against appellant and said Louis Lieserowitz, charging that said judgment for $50 was obtained by fraud and collusion between Louis Lieserowitz and the appellant. The bill was answered, denying fraud and collusion. Replication was filed to the answer. The bill was taken for confessed against Louis Lieserowitz, and the cause was heard on pleadings and proofs. Thereupon the circuit court rendered a decree, finding that the allegations of the bill were true, and that the equities were with complainant, and set aside the judgment, and provided that after 20 days from the entry of the decree a writ of injunction should issue, enjoining the appellant from setting up the judgment as a defense to the action in which the judgment was rendered, and enjoining Louis Lieserowitz from further acting as plaintiff's next friend. Subsequently, on motion of appellee's attorneys, it was ordered that the cause be redocketed in the superior court, and that Simon Lieserowitz be substituted for Louis Lieserowitz as plaintiff's next friend, and that the papers and proceedings be amended by increasing the ad damnum from $1,000 to $20,000. On a retrial of the cause on the same issues, the jury found the defendant not guilty, and judgment was entered on the verdict. An appeal was taken from this judgment to the appellate court, and the appellate court reversed the judgment and remanded the cause, as will be seen by reference to the case of Lieserowitz v. Railroad Co., 80 Ill. App. 248. The cause was then redocketed in the superior court, and tried a third time before the court and a jury. The last trial resulted in verdict and judgment, rendered and entered on December 11, 1900, finding appellant guilty, and assessing the damages in favor of the appellee. An appeal was taken from this judgment to the appellate court, and the judgment has been affirmed by the appellate court. The present appeal is prosecuted from such judgment of affirmance.

MAGRUDER, J. (after stating the facts).

It is assigned as error by the appellant that the trial court erred in giving instructions numbered 1, 2, 3, and 4, given by it for the appellee upon the trial below. A general objection is made to these instructions, as a series, upon the alleged ground that they are argumentative in form and character. Upon this subject we agree with the appellate court, which says in its opinion: ‘We do not regard these instructions so far argumentative as to make them erroneous, especially in view of the very full and favorable instructions given on behalf of appellant, 18 in number, some of which are not free from criticism in a like respect.’ ‘Instructions are to be considered as a single series, and when so considered, if as a whole they state the law correctly, that is sufficient, even though one or more of them standing alone might be erroneous. The instructions constitute one charge, and they are not the instructions of either party, but of the court.’ Railway Co. v. Bannister, 195 Ill. 48, 62 N. E. 864.

1. The first instruction given for the appellee, in addition to the general objection already stated, is further objected to upon the alleged ground that it is a recapitulation, hypothetically stated, of the material facts in the case, and that there was inserted in it matter which had no tendency whatever to prove appellee's claim. In our opinion the instruction is not justly subject to this criticism. The instruction first states the claim made by the appellee as stated in her declaration. This feature of the instruction is certainly unobjectionable under the decisions of this court. An instruction telling the jury that, if they believe from the evidence the plaintiff has proved his or her case as laid in his or her declaration, they will find the issues for the plaintiff, has been held to be unobjectionable. Coal Co. v. Rademacher, 190 Ill. 538, 60 N. E. 888, and cases cited. In view of the holding that an instruction may refer to the case alleged in the declaration, and as a corollary therefrom, this court has recently said: ‘Had the instructions copied the allegations, no objection could have been urged to them.’ Railway Co. v. Bannister, supra. After thus stating the claim made by the appellee in her declaration, the instruction then states that it was the duty of the company to carry plaintiff as a passenger to her place of destination, and to permit her to alight from the car, giving her reasonable time to do so, when requested. The allegation that it was the company's duty to carry the appellee as a passenger to her place of destination is not the insertion of a matter that has no tendency to prove appellee's claim. On the contrary, it is a restatement of one of the allegations of the declaration, and also a statement of the relation between appellee and appellant as that of passenger and carrier, out of which the duty of appellant to the appellee necessarily arose. The instruction then proceeds very properly to say that, if the jury believed, from the evidence, that appellee was, with due care and diligence as a passenger, trying to leave the car at the intersection of State street with Randolph street after notice to the conductor, and that the company by its servants negligently failed to stop the car a sufficient length of time to allow appellee to alight therefrom, but caused the car to be suddenly started, and that by reason thereof appellee, without fault on her part, was thrown off said car and thereby injured, then the jury should find the defendant guilty, etc.

2. The second instruction given by the trial court for the appellee is interpreted as telling the jury to disregard the question of numbers in determining the preponderance of the evidence, and for the reason thus alleged is claimed to be erroneous. In the first sentence of the instruction the jury are told ‘that, when the court speaks of the preponderance of the evidence in these instructions, such preponderance may not be entirely determined by the number of witnesses testifying to a particular fact or facts.’ The rest of the instruction authorized the jury, in determining upon which side the preponderance of the evidence is, to take into consideration various circumstances, such as the opportunities of the several witnesses for seeing and knowing the things about which they testified; their conduct and demeanor while testifying; their interest or lack of interest, if any, in the result of the suit; the probability or improbability of the truth of their several statements in view of all the other evidence, facts, and circumstances proved on the trial, if any, etc. The correctness of the instruction thus criticised is sustained by this court in the cases of Railroad Co. v. Fisher, 141 Ill. 614, 31 N. E. 406, and Meyer v. Mead, 83 Ill. 19. In Railroad Co. v. Fisher, supra, instruction numbered 8 was as follows: ‘That the preponderance of evidence may not depend entirely upon the number of witnesses testifying on either side of the case,’-and it was there said (page 626, 141 Ill., and page 408, 31 N. E.): ‘It is urged that this is practically telling the jury that the greater number of witnesses is no better than the less number. We do not so understand it. It impliedly concedes that, where all other things are equal, the greater number must control. The words ‘may’ and ‘entirely’ are both qualifying words.' Railroad Co. v. Anderson, 176 Ill. 635, 52 N. E. 21. But, if the second...