North Chicago St. R. R. v. Schwartz

Mr. Presiding Justice Windes, after making the above statement, delivered the opinion of the court. Appellant contends, first, the verdict is not warranted by the' evidence; second, that the verdict is excessive; third, that the court erred in giving appellee’s instruction; and, fourth, also in the admission of evidence. First. It is claimed that under the first count, there being no allegation that the obstruction against which the car ran was under the control of appellant, the burden of proof could not shift to appellant, and it was not sufficient to.make a prima facie case, and thus shift the burden to appellant, for appellee to show that she ■was a passenger, and was injured while riding in • the car, without showing affirmatively that the jerk or lurch of the car which threw appellee from her seat was caused by the striking of the car against an obstruction on the tracks. If it be conceded that this contention is correct, still we are of opinion, from the evidence above stated, the jury were justified in finding that the lurch or jerk of the car was caused by an obstruction on appellant’s tracks which was under its control. The allegation that the obstruction was “ in and upon defendant's tracks ” was, however, a sufficient allegation that the obstruction was under appellant’s control, and the evidence clearly shows that.appellant did control the obstruction. If it be conceded that the evidence fails to show that the jerk was caused by the car striking the obstruction, still the evidence showing that the obstruction was under the control of appellant on its tracks, and the car in passing over it lurched or jerked so severely that appellee was thrown from her seat, there was a prima facie case of negligence shown, and the burden was thus cast upon appellant to rebut the specifift negligence charged. Cramblett v. R. R. Co., 82 Ill. App. 542, and cases there cited. The second count may be disregarded because the proof fails to show what the obstruction in the cable slot was. Second. The verdict is large, but w.e can not say, from a careful examination of the evidence, but that the jury were warranted in awarding the amount they did. If the jury believed appellee and her witnesses, and we are not prepared to say their evidence was not entirely credible, the verdict is not excessive. The evidence that appellee danced after her injury is explained by her and her physician. The physician testified that he advised her to use her knee—take daily walks and even to dance, in the hope that moderate exercise would prevent her knee from becoming permanently stiff. Appellee acted on his advice and danced on two occasions. Third. We see no tenable objection to appellee’s instruction. The claim of appellant that it does not apply to the case made by .the declaration, can not be sustained. It could not, in our opinion, have misled the jury, because it is general in its scope. It could not reasonably have been referred to any liability of appellant not alleged nor proven. In the admission of the evidence complained of, we see no reversible error, and it seems unnecessary to refer to it specifically. The judgment is affirmed.