Chicago City Ry. Co. v. Menely

Mr. Justice Horton delivered the opinion of the court. • The testimony as to the rate of speed of the car, the distance between the car and the wagon when the motorman first saw the wagon, and as to some other points, is quite conflicting. These questions were all fairly -submitted to the jury. We can not say that the verdict was so manifestly against the weight of the evidence as to the negligence of the appellant that the court should set it aside. It is urged by appellant that there were several errors during the trial. The first which we shall notice is as to a question propounded by the court. When the appellee was on the witness stand, and the question of his damages was being considered, the court 9.sked him this: “ What were you capable of earning ? ” To this question counsel for appellant interposed a general objection. The facts were before the jury as to appellee’s employment and duties. His reply to the question of the court was $65 per month. While this question is not proper, yet we are of the opinion that under the circumstances of this case the propounding of this question is not a reversible error. It is also urged that the court erred in admitting testimony, against objection by appellant, as to the amount paid to the doctor. Appellee, when on the witness stand, was asked how much, he paid the doctor. He testified that the doctor’s bill was $275, and that he paid it in a note. It is not contended but that this testimony would have been entirely proper if it had also been shown that the amount, as put in appellant’s argument, was “ reasonable, customary or usual.” As a part of the facts necessary to be presented to justify the jury in considering the amount of its verdict, this testimony was proper. If it was not supported by testimony showing that the doctor’s bill was reasonable or for the customary or usual amount, the appellant should have moved to strike it out or have covered it by instruction to the jury. Neither was done. There was, therefore, no error at this point. It must not, however, be understood that we hold that a bill presented by a physician must be allowed without being supported by proper testimony, showing it to be reasonable. Another point urged in behalf of appellant is that an objection was sustained by the court to this question, which was propounded to one of appellee’s witnesses, viz.: “ Q. Isn’t it true that you were running a gambling house over your saloon ? ” A reference to the bill of exceptions shows that the witness answered the question notwithstanding the ruling of the court. That answer stands as a part of the record now before this court. No error is here apparent. It is submitted by counsel for appellant, in concluding their brief, that the evidence shows that “ Stone was at least as much to blame as appellant’s motorman, and that therefore the judgment ought to be reversed without a remanding order.” Counsel for appellee, in their argument filed in this court, say: “We concede here, as we did at the trial, that the negligence of Stone, if any, must be attributed to appellee.” We therefore give no consideration to that question. Every one of the twenty instructions asked by appellant was given without modification, except the first one, which was a peremptory order to the jury to find the defendant not guilty, and which was refused. By these instructions given to the jury, the question of negligence by Stone, if any, was fully presented to the jury. As to what Stone did or did not do, there is no conflict in the testimony pointed out to us, and we have noticed none. As to whether, upon a conceded or undisputed state of facts, the question of whether such facts constitute contributory negligence is one of law for the court, or of fact for the jury, there may be some doubt. That must depend very largely upon the facts and circumstances of each particular case. Wabash By. Co. v. Brown, 152 Ill. 484, 488; C. & E. I. R. R. Co. v. Driscoll, 176 Ill. 330, 335; C. & A. R. R. Co. v. Swan, 176 Ill. 424, 429. A majority of this court are of opinion that this question,, as well as all other questions now before us, was fully and fairly submitted to the jury, and that its finding should not be disturbed. The judgment of the Circuit Court is affirmed.