North Chicago Street Railroad v. Cook

Watermar, P. J. The very able briefs presented byappellant show what we regard as errors committed upon the trial of this cause. In the absence of any evidence showing what amount of expense appellee had paid or incurred, we do not think that the jury should have been instructed that in estimating plaintiff’s damages they might include the necessary expenses which could be treated as a necessary result of the injury. It is true, as is urged by appellee, that there are some things which a jury may consider, in the absence of direct testimony establishing the fact; but neither the average man nor the average juror has had such experience that without evidence he can say what the necessary expenses attending a broken arm are; in endeavoring without evidence to estimate as to such a matter, he must enter upon the field of mere conjecture. C. B. & Q. R R Co. v. Hale, 83 Ill. 360; I. C. R. R. v. Frelka, 9 Ill. App. 605; Joliet v. Henry, 11 Ill. App. 54; Reed v. R R. Co., 55 Iowa, 23; Duke v. R. R. Co., 99 Mo. 347. Nor should appellee have been permitted to state what pain and inconvenience he had suffered in consequence of the injury. Appellee was not an expert qualified to answer pathological questions. There is great danger of misleading in calling attention in instructions to particular bits of evidence; undue importance may thus be given to what is of little consequence or perhaps of no consequence at all, when considered with all other things shown. Some of the instructions are objectionable in this and other respects, but taking the instructions as a whole, in which way they must be regarded, we do not think that the jury was misled to the prejudice of appellant. The answers to the pathological question it is not likely did the defendant any harm; indeed, that a man would suffer pain and inconvenience from a broken arm is one of those things which a jury may infer without evidence. Hpon the merits, it is clear that the plaintiff was entitled to a verdict in his favor. Appellant’s car had stopped; it was not so crowded but that more passengers might get on; indeed, there is no pretense that appellant either gave notice that no more could get on or that it did not desire to receive more passengers. Dnder such circumstances, the stopping of the car was an invitation to any person who desired to become a passenger to get on board; and it became the duty of appellant to afford such persons a reasonable opportunity to do so. Appellant is bound to exercise the greatest diligence to enable parties so invited, to get on, to ride in and get off its cars without injury. When this car stopped and appellee, having hold of the hand rail, was about to step up, for the car to start ere he had a reasonable opportunity to get safely on was presumptively negligence upon the part of appellant. What is a reasonable time for a person to get upon a car, depends to some extent upon the age and agility of the party endeavoring to do so. It is said by appellant that none of its servants gave the signal for the car to start; that the conductor was on the front platform, where his duties as a collector of fares required him to be; that consequently he did not see appellee, and knew nothing about him until after he was injured. Suppose all this to be so; how does it relieve appellant from the presumption of negligence ? Appellant being bound to exercise the greatest diligence to enable appellee to enter its car without being injured in his attempt to do so, it cannot plead the attention of its servants to other matters as an excuse for their want-of care for his safety; nor for their failure in this regard is it a" sufficient reason to say that its bell cord was so arranged that a passenger could and did signal the car to go on; all that human foresight and skill could do for the protection of appellee it was bound to do, and the evidence does not show that it had exhausted the practical resources of ingenuity, care and skill in providing for the safety of this old man. Under the evidence shown in this record, had there been a judgment for the defendant it would have been our duty to set it aside. We ought, then, not to reverse this judgment unless we believe that by the errors committed by the trial court appellant has been prejudiced. If the judgment were much larger than it is we might feel that the result of the trial had been affected by such errors; but the verdict appears to have been the result of deliberation, not of passion or prejudice, and is no larger than in our opinion would he rendered upon a trial free from error. In this class of cases the public have a certain interest; they bear a large portion of the expense of the litigation. A result, so far as appellant is concerned, having been reached which is as" favorable to it as any that can be expected, and which does not appear to us unjust, we see no sufficient reason for granting a new trial. Interest revpublieae ut sit finis litium. The judgment of the Circuit Court will be affirmed. Judgment affirmed.