Przckwas v. Illinois Steel Co.

Mr. Pbesiding Justice Windes, delivered the opinion of the court. The only question presented by appellant is, whether there was error in instructing the jury to find the defendant not guilty. The bill of exceptions does not purport to contain all the evidence, but a statement in what purports to be a report of the proceedings upon the trial, and forming a part of the bill of exceptions, in these words, viz., “ which was all the evidence,” is stricken out. Counsel for appellant, in oral-argument, stated that he supposed these words were stricken -out by him. In this state of the record, we are bound to presume there was sufficient evidence before the court to justify its direction to the jury, to find the defendant not guilty, and also to sustain its judgment. Miner v. Phillips, 42 Ill. 129; Schmidt v. Ry. Co., 83 Ill. 412; Cogshall v. Beesley, 76 Ill. 445; Culliner v. Nash, Id. 515. We had, however, before reaching the above conclusion, made a careful examination of the evidence, guided by the argument of appellant’s counsel, and are unable to say from such examination that the evidence was sufficient to justify its submission to the jury. A model of the push cart, the dumping of which it is alleged caused appellant’s injury, was exhibited to the court and jury during the examination of the witnesses as to the cause and circumstances of the accident. The witnesses were examined with reference to the working and méchanism of the ear, and in answer to questions it appears that by certain indications and illustrations, the nature of which do not appear in the record, the witnesses explained to the court and jury, by the use of the model, the working and mechanism of the car, and how the accident was caused. This model was not offered in evidence, though appellant’s counsel stated he so intended, and not having it before us, we are unable-to determine from the statements of the witnesses, whether there was sufficient proof of appellee’s negligence to justify the submission of the case to the jury. For all that we can tell, an examination of the model in the light of the testimony of the witnesses, their explanations and illustrations, may have convinced the learned trial judge that the accident could not have been caused for the reasons alleged by appellant. For both the reasons stated the judgment is affirmed.