Zetsche v. Chicago, Peoria & St. Louis Railway Co.

Mr. Justice Scott delivered the opinion of the court: The appellee argues that the question whether the trial judg'e should have directed a verdict cannot be considered here, for the reason that it was not raised in the Appellate Court. We have examined the certified copy of the brief filed in the Appellate Court by the appellant and think this objection made by the appellee without merit. Counsel for the appellant state by their brief, filed in this court, “there was some statements of witnesses in this case which, if taken alone, might justify this court in concluding that there was some evidence tending to support the appellee's cause of action,” but counsel say that it was physically impossible that these statements could have been true and that they should therefore be rejected; that if they be so rejected there is no evidence in this case which tends to show that the deceased was in the exercise of due care for his personal safety at the time of and immediately preceding the accident. This contention grows out of the fact that counsel for appellant regard certain evidence upon which they rely as beyond question. While the testimony which is challenged is for various reasons highly improbable, we cannot on that account eliminate it. The Appellate Court and the trial judge are required by the law, upon the question being properly raised, to take into consideration the element of improbability, and if either regards the verdict as clearly against the preponderance of the evidence a new trial should be awarded. We cannot, upon consideration of this motion, reject testimony unless it is contrary to some natural law, as, for example, evidence that on a certain occasion the sun at noontime in this latitude cast a shadow to the south. The proof most favorable to the appellee on consideration of this motion stands alone. We can consider nothing else. (Libby, McNeill & Libby v. Cook, 222 Ill. 206.) Applying this rule, the motion for a peremptory instruction was properly denied. It is complained that the court improperly limited the cross-examination of one of the witnesses who testified that the deceased stopped and looked for approaching trains. The ruling challenged properly sustained an objection to a question which the witness had already answered several times in the same way. Appellee, over objection, was permitted to prove that two of the children of the deceased had died in childhood prior to the death of their father, and it is insisted that this was prejudicial, because it was calculated to arouse the sympathies of the jury for the widow of Zetsche. The pretended purpose of the introduction of this evidence was to show who were next of kin to the deceased and to show that the children who were dead left no descendants. This was not the right way to establish the kinship, but we can not regard the evidence as prejudicial. We do not think it would lead the jury to increase the damages, as might be the case where an injured plaintiff is permitted to show that he has young children dependent upon him for support. It is also complained that the court sustained an objection to a question asked by appellant of the witness Harrington, who was one of the men on the train in question. He was asked how many cars there were on the side-track that afternoon. He replied “one,” and located it about a quarter of a mile from the crossing. He was then asked whether if there had been a cut of six or seven cars on that side-track he would have known it, and to this an objection was sustained. It did not appear but that the witness knew, or believed he knew, from personal observation, precisely how many cars there were on that side-track. His testimony was, in effect, that there was but one. We think the court was right in sustaining the objection: On cross-examination this witness was asked whether the cars were so coupled up that the air-brakes could have been used, and answered, “No, sir.” Appellant objected and the objection was sustained. The cross-examiner continued, however, with interrogatories for the purpose of ascertaining why the cars were not so coupled and for the purpose of demonstrating that had they been so coupled the train could have been stopped quicker. After a number of questions along this line had been propounded and answered without objection, the cross-examiner asked if the only reason that the cars were not coupled so that the air could be used was because the witness did not think it necessary. Appellant then objected on the ground that there was no charge of negligence on account of any failure to use air-brakes or to have the cars equipped so that air-brakes could be used, and moved to have the testimony already taken along that line excluded. The court sustained the objection. Counsel for appellant inquired whether the motion would be sustained. The court replied: “I think part of this ought to be allowed to stand; some of it, I think, may be irrelevant.” Appellant excepted, and the examination proceeded without further reference to air-brakes. All of the objections made in regard to this testimony were sustained. The motion to strike out was to strike testimony that had gone in without objection.- It does not appear precisely what evidence the court intended to strike out and what he intended to let stand. We think the motion to strike, after the court h'ad indicated his purpose to sustain it in part, should have been re-stated and made anew in such manner that from the court’s ruling thereon we could know whether he intended to leave in the record any evidence which we would regard as harmful. He indicated his purpose to strike out a certain portion of the testimony. Appellant then should have ^ascertained what portion was to be stricken out and what was not to be stricken out. Had this been done, no testimony objectionable in character might have been left in the record. We think appellant not in a position to urge the question argued. Complaint is made of appellee’s instruction No. u, on the ground that it permitted a recovery for negligence not charged in the declaration. We think this a misapprehension. The negligence specified by this instruction was averred by the first count. The court modified appellant’s twenty-eighth instruction, which was to the effect that the appellant’s servants “had a right to assume that he [deceased] was rational and would exercise reasonable care and caution to keep himself out of danger,” etc., by striking out the words italicized. The appellant was not injured by the modification. Other objections to the action of the court in passing on instructions are hypercritical. It is finally argued that the verdict was excessive. That is a question we cannot consider. The judgment of the Appellate Court will be affirmed. Judgment affirmed.