North Chicago Street R. R. v. Brown

Mr. Justice Horton delivered the opinion of the court. This is an action by Sarah B. Brown to recover damages for personal injuries, alleged to have been sustained through the negligence of the North Chicago Street Railroad Company. The declaration consists of one count, and alleges that on the evening of February 15, 1891, the appellee was a passenger on one of the appellant’s Lincoln avenue cable cars; and that upon its arrival at Larrabee street, in the city of Chicago, and while the appellee was about to alight with due care, the appellant negligently caused the car to be suddenly started, thereby throwing her to the ground, causing the injuries complained of. As appears from the evidence, the appellee, while attempting to alight from a car of the appellant at the time and place stated, fell and received certain injuries. Whether this was caused by the negligence of the appellant, while the appellee was in the exercise of ordinary care, is the issue. At the trial the jury found the issues for the appellee and assessed her damages at §5,000, and judgment having been entered on the verdict, the defendant below brings the record to this court for review. The jury upon a former trial returned a verdict for the sum of $10,800 damages. First. The first point urged by appellant is that the verdict and judgment are contrary to the evidence, or, as counsel say in concluding their argument upon this point, “ contrary to the preponderance of the evidence.” As stated above, this is the second verdict in this case, and is for less than one-half the amount of the first. It is not necessary to review at length the testimony. As is usual where several witnesses are called to give the details of an accident, they differ. But here the differences are not so great as to justify this court in interfering with the verdict of the jury. Second. The next point urged by appellant is that the verdict and judgment are excessive. The injury to appellee was serious. Before the injury she was a strong, healthy woman. For four weeks after the injury she lay at the residence of a Mr. Thomas, and for over five months thereafter she was at the County Hospital. During these six months she suffered much pain. For some eight months after leaving the hospital she was compelled to use crutches, and up to the time of the second trial, over six years after the accident, she was still using a cane. There is testimony tending to show injury to the hip joint. At the time of the injury she was thirty-five years of age. There is also testimony tending to show that the injury may be permanent. The testimony is such that there is no warrant for an inference that the jury was influenced by passion or prejudice. We can not interfere with this verdict upon the theory that it is excessive. Third. The only other point urged by appellant is that the trial court erred in instructing the jury. Complaint is made as to the giving of two of appellee’s instructions, the first of which is as follows, viz: “ If the jury believe from the evidence in this case, that the defendant controlled and operated, for the purpose of carrying passengers for hire, certain street cars upon Lincoln avenue, in the city of Chicago, Cook county, Illinois, and that the plaintiff on or about the loth day of February, 1891, was a passenger for hire on one of the said cars of the defendant, and that the defendant, by its servant, caused the said car to be stopped for the purpose of allowing passengers to alight therefrom, and the plaintiff was in the act of alighting from said car while said car was so stopped, and while in the act of alighting from said car was using all reasonable care and caution to avoid the injury complained of in the declaration, and that the defendant, through its servant, negligently and carelessly caused said car to be set in motion while the plaintiff was so alighting from said car, and that thereby the plaintiff was injured, then' the jury should find the defendant guilty. ” The reasons urged against the correctness of this instruction are: (1) That there is no testimony tending to shovy care on the part of the appellee, upon which to base the instruction; (2) that it entirely omits the question as to ■whether negligence of appellee ¡was the proxi mate cause of the injury; and (3), that it requires of appellee reasonable care, but does not instruct the jury as to what is reasonable care. These objections to this instruction can not be sustained. We do not agree with the counsel that there is no testimony tending to show care on the part of the appellee. All her actions at the time of the injury were fully stated by witnesses. Of course no witness was asked .if appellee was exercising proper care; or whether there was negligence on her part. “ Want of proper care” and “negligence” are substantially synonymous terms. Whichever term is used, the fact is one to be determined by the jury from all the circumstances developed by-the testimony. When this instruction is considered with all the other instructions in the case, it will be seen that the jury could not have been misled or left in ignorance as to what constitutes “ reasonable care.” The other instruction complained of is this, viz.: “The court instructs the jury that if,under the evidence and instructions of the court, the jury find the defendant guilty, then in assessing the plaintiff’s damages, the jury may take into consideration not only the loss and immediate-damage arising-from the injury received at the time of the accident, but also the permanent loss and damage, if any is proved by'the evidence, arising from any disability resulting to the plaintiff from the injury-in question, which renders her less capable of attending to her business than she. would have been if the injury had-not been received.” We give appellant’s criticism of this instruction in the language of its counsel in their argument, viz.: , . “ This instruction, as will be seen, also leaves entirely out of view the question whether the injury for which the jury might assess damages was the natural and proximate result of the negligence of the defendant, and- it practically tells the jury that they may assess any damage, whether it be the proximate and natural result of the negligence or that which is more remote.” It should be stated that there is no evidence tending to show any other reason or cause than that of the injury complained of for appellee’s illness, pain and suffering or lameness. It is no doubt the law that appellee can not recover in this case for any damages which are not the natural and proximate result of the injury complained of. There is nothing in this instruction which infracts that rule. Indeed, this instruction definitely limits the recovery to damages directly resulting from the injury in question. The language is as to damages, if any, “ arising from any. disability resulting to the plaintiff from the injury in question.” If the disability ■ resulted in whole or in part from any cause other than the injurjr to appellee produced by her fall when alighting from appellant’s car, the jury could not, under this instruction, assess damages therefor. The judgment of the Circuit Court is affirmed.