Central Railway Co. v. Serfass

Per Curiam: Appellee, a minor, while crossing Adams street, in Peoria, on the 15th day of September, 1892, was struck by a car, propelled by electricity, on appellant’s track, and seriously injured. This action was brought to recover damages resulting from the injury, and on a trial before a jury the plaintiff recovered a judgment for §1500, which,' on appeal, was,affirmed in the Appellate Court. To reverse the latter judgment the Central Railway Company has appealed to this court. In the argument of appellant it is claimed that the court erred in giving instructions 1, 3 and 7 for the plaintiff, and upon that ground a reversal of the judgment is asked. In the first instruction the court directed the jury that the acts of negligence charged in the declaration are two : First, not keeping a proper lookout and failing to use due diligence to stop the car when the danger to plaintiff became apparent; and second, running the car at a high and dangerous rate of speed.' It is insisted that no count of the declaration contains an averment that the injury to the plaintiff was caused by the failure of the motorman to use due diligence to stop the car when the danger became apparent, and hence the charge was erroneous. The declaration contained four counts. The negligence charged in the third count was, that the car was run at a high and dangerous rate of speed, and in the fourth count the negligence averred was, running the car at a high and dangerous rate of speed and the failure to keep a proper lookout on the motor-car. The instruction could not, therefore, be predicated on the averments of either of these counts. The first and second counts are substantially alike. In the first it is, in substance, averred that it was the duty of defeudant, by its said servants, then and there to have kept a proper lookout on said , track and to have stopped said car, but the defendant, carelessly and negligently, did not keep a proper lookout and did not stop said car, but by not keeping a proper lookout, and in consequence thereof, improperly and negligently ran and propelled said car against and upon the plaintiff so being on said track and in front of said car, and being then and there unable to get out of the way of said car, whereby said plaintiff was then and there struck with great force, etc. It will be observed that while the count avers that it was the duty of defendant to have kept a proper lookout on the track, and to have stopped the car, and that it carelessly and negligently did not keep a lookout and did not stop the car, it fails to aver directly that in consequence of not stopping the car the injury arose, and we are inclined to hold that the instruction was technically inaccurate. And the same may be said in regard to instruction No. 3. But if the jury were not misled by the instruction the judgment ought not to be reversed, and in view of the clear and emphatic charge of the court in regard to the same subject in defendant’s first instruction, it is difficult to perceive how the jury could be misled. That instruction is as follows : “You are instructed that the plaintiff charges, in the first count of her declaration, that the defendant was negligent in not keeping a proper outlook on its track, in consequence of which plaintiff was injured; that to recover under this count of her declaration she is bound to prove, by a preponderance of the evidence, that the servants of defendant in charge of said car were not keeping a proper lookout on said track, and further, that the injury to plaintiff was caused by such act, and unless she has so proven, plaintiff cannot recover under that count; that in the second count of her declaration she charges that the defendant was negligent in not keeping a proper lookout and in running the car at a high and dangerous rate of speed; that in order to recover under this count she must prove, by a preponderance of the evidence, not « only that the defendant was negligent in the respect charged, but that the injury was ■ occasioned thereby; that in the third count of her declaration she charges that the defendant was negligent in running said car at a high and dangerous rate of speed, and in order to recover under that count she must prove, by a preponderance of the evidence, not only that the defendant was negligent as charged, but that the injury was caused thereby; that in the fourth count of her declaration she charges that the defendant was negligent in not keeping a proper lookout and in running said car at a high and dangerous rate of speed; that in order to recover under that count she must prove, by a preponderance of evidence, not only that the defendant was negligent as charged, but that the injury was occasioned thereby. And you are instructed, that unless you believe, by a preponderance of the evidence, that the defendant failed to keep a proper lookout along its track, or that the car was being run at a high and dangerous rate of speed at the time in question, the plaintiff cannot recover, and you should find the defendant not guilty.” Here the attention of the jury was called, in plain terms, to the charge contained in each count of the declaration, and told what that charge was; and the jury were also informed, that unless the charge as laid in each count was proven by a preponderance of the evidence the plaintiff could not recover. While the plaintiff’s first instruction may be regarded as inaccurate, and, standing alone, might be calculated to mislead the jury, yet when viewed in connection with the instruction of the defendant the error committed was not of such magnitude as to work a reversal of the judgment. In plaintiff’s seventh instruction the jury were directed, in substance, that if they found the issue for plaintiff and found defendant guilty, and plaintiff had sustained damages as alleged in her declaration, in assessing damages they might take into consideration such permanent injury as she may have sustained, and such pain and suffering, mental and physical, as were endured by her. This instruction is fully sustained by Indianapolis and St. Louis Railroad Co. v. Stables, 62 Ill. 813, Hannibal and St. Joseph Railroad Co. v. Martin, 111 id. 219, and City of Chicago v. McLean, 133 id. 148, where similar instructions were involved. In all cases of this character the recovery is for the injury received,—such damages as may" be the natural and proximate consequence of the injury. But in arriving at the amount "the jury may consider the suffering, if any, of the injured party which grew out of the injury. Where suffering is regarded as an element of recovery, it may be that physical suffering lies at the basis of an element of that character; but as was said in the McLean case, “there cannot be severe physical pain without a certain amount of mental suffering,” and hence a direction to a jury that they may take into consideration mental suffering, after all does not signify more than a recovery for physical pain. The record presents no substantial error, and the judgment of the Appellate Court will be affirmed. Judgment affirmed.