Sunderland v. Pioneer Fire Proof Construction Co.

Mr. Presiding Justice Dibell delivered the opinion of the court. There were seven- counts in the declaration. It is claimed that as t,o all but the second there was a variance between the declaration and the proofs, because said counts charged plaintiff was driving Ms horse, while the proof showed that before tbe injury plaintiff had stopped, got out of his buggy and taken his horse by the head. We do not need to determine this contention, for the second count certainly stated the situation and the case as the proofs tended to establish them. It charged mere negligence, and there was proof tending to support it. In this state of the pleadings and proofs the court erred in giving at the request of appellee the sixth instruction which told the jury they could not find the appellee guilty unless appellant' had shown by the greater weight of the evidence that the act complained of was willfully or wantonly done. This error was not cured or waived by the act of appellant in asking instructions that if the jury believed the injury was caused by the willful and wanton act of the motorman they should find for plaintiff. Appellant had two counts, the fifth and seventh, which charged that the injury was caused by willful and wanton acts of the motorman. Said instructions asked by appellant were properly applicable to said fifth and seventh counts. If the sixth instruction given at request of appellee had been that appellant could not recover under the fifth and seventh counts unless he proved by the greater weight of evidence that the act complained of was willfully or wantonly done, it would have been correct; but as asked and given it required that character of proof in order to a recovery under any of the other five counts, which charged mere negligence. Appellee was permitted to prove over appellant’s objection that the motorman had on other occasions been careful and had on other occasions assisted those driving other horses when meeting them under like circumstances. The true issue was whether the motorman was negligent on the occasion when appellant was hurt. This evidence should not have been admitted. A number of leading and suggestive questions were improperly permitted to be put by appellee to its witnesses on direct examination, notwithstanding objections interposed. The judgment will be reversed and the cause remanded for a new trial.