West Chicago St. R. R. v. Loftus

Mr. Presiding Justice Windes, after making the foregoing statement, delivered the opinion of the court. It is claimed the verdict is against the law and evidence and the weight of the evidence, and that it was error to give plaintiff’s fourth and sixth instructions, as stated above. It is true that there are some differences as to the circumstances and details testified to by the witnesses Kenney and Lang, which tend to weaken the force of theirevidence. They need not be set out in detail, as we are of opinion they are insufficient to seriously affect their evidence, and because the weight to be given the evidence of the witnesses was for the jury. The appellant contends that the plaintiff is wholly unsupported, but we can not say, from a careful reading of the evidence, in the light of the arguments, that the jury was not justified in believing that of appellee and his witnesses as against that of appellant’s witnesses, and in finding that appellee was pushed by the conductor from the car while it was moving. This being our conclusion, it follows, the case was properly submitted to the jury and the verdict should stand, unless there was error in the instruc tions, that being the only other assignment of error argued by appellant. It is said that the fourth instruction excludes from thenonsideration of the jury all the evidence introduced by appellant, because it tells the jury that if they “ find that the evidence bearing upon the plaintiff’s case preponderates in his favor, although but slightly, it -would be sufficient for the jury to find the issues in his favor.” We think the instruction is not fairly open to the criticism made. It was held that there was no valid objection to the same instruction in Taylor v. Folsing, 164 Ill. 332-5. See also W. C. St. R. R. Co. v. Karzalkierwiecz, 75 Ill. App. 240. The sixth instruction of plaintiff is criticised because, it is claimed, it singles out the plaintiff, and tells the jury, in substance, they may find their verdict on his unsupported testimony. We can not assent to this contention. The instruction may as well apply to either of appellant’s conductors as to plaintiff. In N. C. City Ry. Co. v. Gastka, 27 Ill. App. 518-23, this instruction was held not to be erroneous, and this decision was affirmed by the Supreme Court, 128 Ill. 613, the court saying: “ The instructions may contain technical inaccuracies, but, in the main, we regard them as correct. They contain nothing calculated to mislead the jury.” There being, in our opinion, no reversible error in the record, the judgment is affirmed.