West Chicago St. Ry. Co. v. McCallum

• Decision Date: 08 November 1897
• Citation: 48 N.E. 424,169 Ill. 240
• Parties: WEST CHICAGO ST. RY. CO. v. McCALLUM.
• Court: Illinois Supreme Court

169 Ill. 240

48 N.E. 424

WEST CHICAGO ST. RY. CO.

v.McCALLUM.

Supreme Court of Illinois.

Nov. 8, 1897.

Appeal from appellate court, First district.

Action by Mary B. McCallum against West Chicago Street-Railway Company for personal injuries. A judgment for plaintiff was affirmed by the appellate court (67 Ill. App. 645), and defendant appeals. Affirmed.

Egbert Jamieson and John A. Rose, for appellant.

Edward E. Perley, for appellee.

BOGGS, J.

This is an appeal from the judgment of the appellate court of the First district affirming a judgment of the superior court of Cook county in favor of the appellee in the sum of $2,000 for personal injuries sustained by her through the alleged negligence of the servants of the appellant company in the management of one of appellant's street cars, whereby she was struck and injured by said cars at a street crossing. At the close of the testimony on behalf of the plaintiff below the superior court overruled the motion of appellant company to direct the jury to find the defendant not guilty, and such ruling of the court is assigned as for error.

Any complaint which the appellant company might justly have made against the ruling of the court must be regarded as waived, for the reason it did not abide by the motion, but proceeded to introduce witnesses in its own behalf to contradict the case made by the plaintiff. Railroad Co. v. Wedel, 144 Ill. 9, 32 N. E. 547;Harris v. Shebek, 151 Ill. 287, 37 N. E. 1015. At the close of the testimony for both parties in the case the cause was submitted to the jury for decision, and the appellant, among other instructions presented to the court to be given to the jury, asked the following: ‘No. 11. The court instructs the jury to find the defendant not guilty.’ The court refused to grant the instruction, and the appellant company preserved an exception. The purport of the instruction was to ask the court to determine the evidence was insufficient to warrant the submission of the case to the jury. But the appellant company had, before asking the instruction, joined in submitting the case to the jury, and could not, therefore, be allowed to withdraw the submission, and insist there was nothing for a jury to determine. If it was the design of the appellant, in presenting the instruction, to preserve for review in this court the question whether, as matter of law, the evidence justified the submission of the case to a jury, it should, at the close of all the evidence, have presented to the court a written instruction asking that the evidence be excluded, and the jury directed to return a verdict in its favor. Peirce v. Walters, 164 Ill. 560, 45 N. E. 1068;Valette v. Belanski, 167 Ill. 564, 47 N. E. 770. We cannot agree the court erred in refusing to give the instruction under consideration. The court instructed the jury that, if they should find the issues for the plaintiff, then, in determining the amount of the damages, they might take into consideration such prospective suffering and loss of health, if any, as the jury might believe, from all of the evidence before them in the case, she had sustained, or will sustain, by reason of such injury, if any. The complaint as to this instruction is, no allegation of prospective suffering is made in the declaration. During the course of the trial, leave was given the appellee to amend the declaration so as to include this element of damage, but the amendment was not actually made. Therefore, in this court, the declaration stands as originally written, and must be so treated by us. Railroad Co. v. Wieczorek, 151 Ill. 579, 38 N. E. 678.The allegations of the declaration with respect to the point under consideration are as follows: ‘The plaintiff was then and there thrown with great force and violence from and out of the said carriage to and upon the ground, and the plaintiff was thereby then and there greatly bruised, hurt, and wounded, and her sight of both eyes was greatly impaired, and she became sick, sore, lame, and disordered, and her slight of both eyes greatly impaired, and so remained for a long space of time, to wit, hitherto, during all of which time she, the plaintiff, suffered great pain, and was hindered and prevented from attending to and transacting her affairs and business, and by means of the premises the plaintiff was forced to and did lay out divers large sums of money, to wit, the sum of one thousand dollars, in and about endeavoring to be cured of her said wounds, hurts, and bruises, and impaired eyesight, occasioned as aforesaid.’ In the case of Packet Co. v. Defries, 94 Ill. 598, which was an action on the case to recover damages for personal injuries, the allegation of the declaration was, ‘The plaintiff then and there became and was sick, lame, and disordered, and so remained for a long time, to wit, hitherto;’ and it was assigned as for error that the instructions authorized the jury to award damages for permanent injury, for the reason that the declaration did not allege the plaintiff had suffered permanent injury, and the court said: ‘The permanency of plaintiff's injury was merely evidence to be considered by the jury in determining the severity of the plaintiff's sickness, lameness, and disorder, and the rules of pleading do not require the plaintiff to set forth in his declaration the evidence...