Trakal v. Heusner Baking Co.

Mr. Justice Magruder delivered the opinion of the court: In this case the Appellate Court reversed the judgment of the Superior court of Cook county without remanding the cause; and in its judgment it made the following finding of facts: “The court finds that appellee was injured by reason of his own negligence; that appellant was guilty of no negligence which contributed to such injury; that appellee failed to use ordinary care and caution for his own safety, and, in consequence thereof, he received the injuries of which he complains, and that appellee assumed the risks incident to his employment, including those arising from the -use of this machine.” In Supple v. Agnew, 202 Ill. 352, the Appellate Court embodied in its judgment a finding that the injury to the appellee in that case was not caused by any negligence of the appellants therein, and that the injury to appellee was caused by the negligence of appellee, and his fellow-servants, in failing to exercise due care and caution,’and failing-to use obvious and ordinary precautions for their own safety; and in that case we said: “That the Appellate Court had the power, under section 87 of the Practice act, to reverse the judgment of the superior court without remanding the cause, upon the ground that the weight of the evidence did not authorize the verdict, is too well settled by our former decisions to be longer a matter of controversy. (Fitzsimmons v. Cassell, 98 Ill. 332; Hawk v. Chicago, Burlington and Northern Railroad Co. 147 id. 399, and cases cited; Borg v. Chicago, Rock Island and Pacific Railway Co. 162 id. 348). Nor can it be denied that the finding of facts, recited by the Appellate Court in its judgment; is conclusive upon this court. In such case, we can only determine whether or not the Appellate Court properly applied the law to the facts so found. A few of the cases so holding are Hawk v. Chicago, Burlington and Northern Railroad Co. supra; Hancock v. Singer Manf. Co. 174 Ill. 503; Davis v. Chicago Edison Co. 195 id. 31; Homersky v. Winkle Terra Cotta Co. 178 id. 562. It is not pretended that plaintiff below could, under the law applied to the facts found by the Appellate Court, recover. The judgment of.that court must accordingly be affirmed.” The decision in the case of Supple v. Agnew, supra, applies to, and controls, the disposition, which should be made of the case at bar. Under section 87 of the Practice act, the finding of facts, embodied in its judgment by the Appellate Court, is conclusive upon this court. The facts, which the Appellate Court is required by section 87 to find and incorporate in its judgment, are the ultimate facts, upon the existence or the non-existence of which, as set up in the pleadings, the rights of the parties depend. In an ordinary action for damages on account of injuries received, the ultimate facts will ordinarily be, that the plaintiff was ór was not in the exercise of ordinary care, and that the defendant was or was not guilty of negligence. (Hogan v. City of Chicago, 168 Ill. 551; Siddall v. Jansen, 143 id. 537; Senger v. Town of Harvard, 147 id. 304; Hawk v. Chicago, Burlington and Northern Railroad Co. 147 id. 399). Inasmuch as the Appellate Court has found that the present appellant, who was the appellee in the Appellate Court, failed to use ordinary care and caution for his own safety, and, in consequence thereof, received the injuries of which he complains, and that the present appellee company, which was the appellant before the Appellate Court, was guilty of no negligence which contributed to the injury, an affirmance of the judgment of the Appellate Court necessarily follows. The argument of counsel for the appellant, made in this court, consists principally of a discussion of the facts, and is an attempt to show by such discussion that the Appellate Court was mistaken in finding that the present appellant failed to exercise ordinary care, and that the present appellee was not guilty of negligence. Such discussion can have no influence with this court for the reason that, under the law, the finding of facts thus indicated is binding upon this court, and cannot be contradicted in this court. Accordingly, the judgment of the Appellate Court is affirmed. Judgment affirmed,.