Chicago & G. T. Ry. Co. v. Spurney

Mr. Justice Sears delivered the opinion of the court. The grounds upon which a reversal of this judgment is sought are, first, a variance between the evidence and the declaration, and, second, that the verdict is excessive. It is argued that the evidence as to the alleged custom of the foreman to call out and give notice of starting the machinery in motion was at variance with the declaration, and that the court erred in overruling the objections to its introduction and in refusing to strike it out and to instruct the jury to find for the defendant below. We are of opinion that this contention can not be sustained. Whether the gist of the negligence charged be the failure to provide proper appliances for signals when the machinery was about to be set in motion, or the negligent starting of the machinery without any warning to the defendant in error that it was about to be started, in either event, we regard the evidence sufficient to sustain the allegations of the declaration. It appears from the evidence that there was no such appliance furnished by plaintiff in error for the protection of its employes engaged in work upon the machinery, distant a considerable space from the engine by which it was moved. Moreover, it appears that the defendant in error was injured by the starting up of the machinery without any warning to him that it was about to be started. It might reasonably be concluded by the jury from the evidence, that the negligence of the plaintiff in error in failing to provide any bell, gong or other appliance, by which the operator of the engine could notify those working upon the distant machinery, which was to be moved by the engine, that the engine was about to start and set the machinery in motion, was an efficient and proximate cause of the injury. It is certain that the proof sustains the allegation that “ by reason of the negligent, careless and improper conduct of the said defendant in setting said machinery in motion,” the defendant in error was injured. In this kind of action it is enough to sustain by the proof sufficient of the allegations of the declaration to warrant a recovery. 1 Chitty on Pl. (9th Am. Ed.), 386-7; L. E. & W. R. R. Co. v. Christianson, 39 Ill. App. 495. If the first count of the declaration, upon which the recovery was had, is double, in that it in effect charges negligence in failing to furnish any appliance to warn defendant in error, and in that it also charges negligence in starting up the machinery without any warning to defendant in error by appliance or otherwise, the fault is one which could not be reached by objection to evidence upon either charge at the trial. Plaintiff in error objected to the evidence when proffered, and also moved to have it stricken out; therefore it can not be said that the verdict cured a variance, if there was one. But we are of opinion that there is no such discrepancy between the essential allegations of the declaration and the evidence, as constitutes a variance. Secondly, it is urged that the verdict was for a grossly excessive amount, and that the remittitur did not cure this vice and make it good to support a judgment. In C. & E. I. R. R. v. Cleminger, 77 Ill. App. 186, we held that where a verdict was for an excessive amount, and it appeared that the excess was so gross as to indicate passion or prejudice on the part of the jury as a cause, a remittitur ought not to be viewed as curing the verdict. But we also held, under the facts in that case, that where no errors appeared in the proceeding at the trial, and where the evidence supported the verdict for the larger part of the amount awarded, we could not hold that the amount of the verdict itself indicated any improper motive on the part of the jury. In this cause no complaint is made of any error in procedure, except as above indicated upon the ground of a variance. The only ground, therefore, upon which it could be held that this verdict is not made good by the remittitur, would be that it is, as reduced, still too large, or that as originally returned it was so grossly excessive as to indicate passion or prejudice. We are of opinion, after consideration of all the evidence, that the verdict here should not be so viewed. The evidence discloses that defendant in error was so injured that it became necessary to amputate his leg. There were three amputations performed, and by the third the leg was cut off above the knee. Plaintiff in error was in the county hospital for more than six months. His leg was terribly lacerated, involving of necessity great suffering during a long period of time, during which the various surgical operations were performed. Before the injury he was earning §1.75 a day. It required no further evidence to warrant the jury in concluding that his earning capacity was permanently impaired. Under this evidence the trial court considered a recovery of $15,000 sufficient. The amount thus awarded is large, yet upon the evidence and after the approval of the trial court, we can not hold that it is excessive. And while the award of $25,000, as made by the jury, was evidently regarded by the trial court as excessive, yet we are not prepared to hold that it was so grossly excessive as to warrant the conclusion that the jury were moved by passion or prejudice. The judgment is affirmed.