North Chicago Street Railroad v. Shreve

Mr. Justice Craig delivered the opinion of the1 court: Of the assignments of error it will be necessary to consider only those two discussed by counsel for appellant in their argument, viz.: That the attorney for appellee made improper statements in his argument to the jury; and that the court erred in instructing the jury. Counsel for appellant insist that the argument of the attorney for appellee before the jury is reversible error, and quote extracts therefrom. An examination of the record shows that much latitude was allowed the attorneys for both appellant and appellee in addressing the jury. This court has repeatedly held that there must be a ruling of the trial court, to which exception is taken, or the objection will be ineffectual. The record shows in this case that objection was made and exception taken, but no ruling was made by the court. The record does not show that the court refused to rule, or that the matter was pressed upon the presiding judge to rule on the question. In Marder, Luse & Co. v. Leary, 137 Ill. 319, this court said (p. 323): “The remark, T except to that statement,’ meant nothing, in a legal sense, in the connection in which it occurred. The court had made no ruling to which it was applicable; and if it was intended to be an objection it was ineffectual, because it was not pressed upon the attention of the judge and his ruling obtained thereon.” See, also, Elgin, Joliet and Eastern Railroad Co. v. Fletcher, 128 Ill. 619; North Chicago Street Railway Co. v. Cotton, 140 id. 486; Pike v. City of Chicago, 155 id. 656; West Chicago Street Railroad Co. v. Annis, 165 id. 475. Upon the trial the court gave the following instruction for the plaintiff: “The court instructs the jury, that if you find the issues for the plaintiff in this case, then the plaintiff is entitled to recover such actual damages as the evidence may show she has sustained as the direct or approximate result of such injury, taking into consideration her pain and suffering, so far as the same may appear from the evidence in the case; and if the jury find, from the evidence, that the said injury is permanent and incurable, they should take this into consideration in assessing the plaintiff’s damages.” It is not contended that this instruction fails to state the law correctly, but the objection is that there is no evidence of permanent injury upon which it can be based. It is true, no medical expert testified as to the injury being permanent; but the plaintiff testified on the trial of the case, nearly three years after the injury was received and after the miscarriage occasioned by the injury, as follows: “Before that time I was always very healthy, and since that time my health has been almost a total toréele. I have suffered a great deal, more or less, with the internal injuries that I received then, and also in my back. It hurt me—in fact it has hurt me all over. These pains are right in the small of my back and across my hips—just right at the spine. I have pains in my womb and my ovaries most all the time, and they have left me very nervous. It is a complete nervous shock. It has left me that I am very seldom or ever without a headache. It is always in the top of my head and right down the back of my neck, at the base of the brain. Before this fall I never had a spell of sickness in my life. I have not. conceived a phild since the shock or the accident. The next spring I was somewhat irregular, and I went to the doctor and he gave me a prescription, and that was the end of it. After that I have been—I can’t say I have been regular, but I have been more so than I wras. My menstruations are a great deal more so than they were, that is, I flow more frequently and more abundantly, and my misery at that time is a great deal more than what it was before. I have an excess of pain contrasted with my former condition. * * * I have pains in my womb now and in my ovaries. I have headaches also, and my strength isn't what it used to be.” This testimony was uncontradicted, and at least tended to prove that the injury was permanent. The fact that the death of the unborn child was caused by the injuries received, followed by a miscarriage, with its attendant dangers, shows their serious character. The language of the plaintiff that since the time of the accident “my health has been almost a total wreck,” conveys the idea that her health has been ruined or destroyed. These are the words of the plaintiff, who received the injury—the only person who could describe her sufferings and injuries, and the effect the injuries had had upon her health so long a time after the accident. The jury saw the witness upon the stand, and had an opportunity to form some estimate of her condition of health from her appearance, in connection with her testimony as to its serious and permanent character. The physician who attended her after the accident and during her miscarriage testified that she suffered a great deal of pain. He examined her in 1896, the accident having occurred in October,. 1893, and found an “ante-version,” or tipping of the womb towards the bladder or front. This testimony, if true, when all considered, in our opinion was sufficient to justify the instruction. Moreover, under the instruction the question of permanent injury was to be taken into consideration in assessing plaintiff’s damages. If the judgment was excessive, the remittitur, to a great extent, at least, obviated that objection. Albin v. Kinney, 96 Ill. 214. Counsel for appellant urge as error the refusal of the court to give appellant’s seventeenth refused instruction in-connection with appellant’s eighth given instruction. The following is the eighth instruction given: “The court instructs the jury, that if they believe, from the evidence, that any witness has willfully and deliberately testified false to any material fact in this case, then the jury may entirely disregard all the evidence of such witness, except in so far as he may be corroborated by other credible evidence or by circumstances and facts, as shown by the credible evidence in the case.” The seventeenth refused instruction was an attempt to define what the term “material facts” included, and was unnecessary, and was properly refused. Finding no sufficient error in the record for which the judgment should be reversed, the judgment of the Appellate Court is affirmed. Judgment affirmed.