West Chicago St. Ry. Co. v. Fishman

• Decision Date: 08 November 1897
• Citation: 169 Ill. 196,48 N.E. 447
• Parties: WEST CHICAGO ST. RY. CO. v. FISHMAN.
• Court: Illinois Supreme Court

169 Ill. 196

48 N.E. 447

WEST CHICAGO ST. RY. CO.

v.FISHMAN.

Supreme Court of Illinois.

Nov. 8, 1897.

Appeal from appellate court, First district.

Action by Marcus Fishman against West Chicago Street-Railway Company. From a judgment of the appellate court (68 Ill. App. 445) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Egbert Jamieson and John A. Rose, for appellant.

B. M. Shaffner, for appellee.

BOGGS, J.

This is an action on the case, instituted in the superior court of Cook county, to recover damages for personal injuries alleged to have been sustained by the appellee by reason of the alleged negligence of the servants of the appellant company. A trial by jury resulted in a judgment in the sum of $2,500 in favor of the appellee. An appeal was perfected to the appellate court of the First district by the appellant company, where the judgment of the superior court was affirmed, from which affirmance a further appeal has been prosecuted to this court.

It is complained that the court refused to grant an instruction asked by the appellant company, directing the jury to return a verdict in its favor. This instruction was one of a series presented to the court after the case had gone to the jury. The court properly refused it, for the reason that it called upon the court to decide, as matter of law, that the evidence did not warrant the submission of the case to the jury. The appellant had already submitted the case, and thereby conceded that the character of the evidence warranted that course, and, having done so, could not be allowed to retrace its steps, and demand that the court should exclude the evidence, and peremptorily direct a finding in its favor. If the purpose of counsel was to preserve for review in this court the question of law sought to be presented to the court by the instruction, it should, before submitting the case to the jury, have entered its motion to exclude the evidence, and for a written instruction directing the jury to find a verdict in its favor. Peirce v. Walters, 164 Ill. 560, 45 N. E. 1068;Vallette v. Bilinski, 167 Ill. 564, 47 N. E. 770.

The appellee, a German, who spoke and understood our language but imperfectly, being asked, when on the stand as a witness, ‘Where did you go after the month in which you were at home?’ replied, ‘I tried to go to work, but couldn't.’ The witness Meyer, who was introduced for the purpose of showing the condition of the appellee after he was injured, while testifying with relation to an interview had with him while he was confined to his bed, being asked the following question, ‘I ask you if he [appellee] answered you,’ replied, ‘He answered me, but he didn't answer right.’ The witness Bott, who had testified that she visited appellee about the same time, was asked, ‘How did you find him?’ and she answered, ‘I found him very ill.’ The appellant company objected to each of these answers, and moved that they be stricken out, and saved an exception to the refusal of the court in each instance to sustain its motion. The answer made by appellee was not responsive to the question asked him, but, at most, was but an assertion that he made an effort to work, but was physically unable to do so. The answer of the witness Meyer amounted to an expression of his opinion that appellee was not at the time in the full possession of his mental faculties, and that of the witness Bott that the appellee was at the time very ill. The argument in support of the objections to all of these answers is comprehended within the general rule that a witness not an expert is not competent to testify to an opinion. Where a previous habit or study is essential to the formation of an opinion sought to be put in evidence, only such persons are competent to express an opinion as have, by experience, special learning, or training, gained a knowledge of the subject-matter upon which an opinion is to be given, superior to that of an ordinary person. Witnesses, not experts, are, however, allowed to express opinions when the subject-matter to which the testimony relates is such in its nature that it cannot be reproduced and described to the jury precisely as it appeared at the time. Opinions may be given by nonexpert witnesses as to the state of health, hearing, eyesight, of another, or the ability of another to work or walk or use his arms or legs naturally, or whether such other is apparently suffering pain, or is unconscious, in possession of his or her mental faculties, intoxicated, excited, calm, etc. City of Aurora v. Hillman, 90 Ill. 61; Railroad Co. v. Martin, 112 Ill. 16;Spear v. Commissioners, 113 Ill. 632;Railway Co. v. Van Vleck, 143 Ill. 480, 32 N. E. 262;Carter v. Carter, 152 Ill. 434, 28 N. E. 948, and 38 N. E. 669. It therefore seems clear that...