West Chicago St. R. R. Co. v. Lieserowitz

Mr. Presiding Justice Windes delivered the opinion of the court. Appellant claims, but it is not argued, that the evidence is not sufficient to justify the verdict, and that the judgment should be reversed without remanding. From what we shall say under the next contention of appellant, we think it will be clearly apparent that the facts of the case present an issue which should have been determined by a jury. Next, the claim is made that the judgment is contrary to the preponderance of the evidence. In this regard it is argued that because the plaintiff’s case, as to the circumstances of the accident, depends upon her evidence alone, not being corroborated by a single witness, and is contradicted by two witnesses for the appellant, whose testimony is consistent with itself and diametrically opposed to her evidence, the verdict can not stand, and therefore the judgment must be reversed as contrary to the weight of the evidence. Numerous cases of the Supreme Court, decided when it had jurisdiction to determine questions of fact in cases at law, and of the Appellate Courts since their organization, are cited, to the effect, in substance, that a verdict for the plaintiff, when resting only upon the testimony of the plaintiff, when that is contradicted not only by the defendant, but also by another witness or by the defendant’s employe and one or more witnesses, and there are no elements of probability to turn the scale, such a verdict will be reversed as contrary to or against the weight of the evidence. Among others the following cases are cited which support the proposition as stated, viz.: Koester v. Esslinger, 44 Ill. 476; Peaslee v. Glass, 61 Ill. 94; Belden v. Innis, 84 Ill. 78; R. R. Co. v. Gill, 37 Ill. App. 61; Bernstein v. Patterson, 33 Ill. App. 152; R. R. Co. v. Mahoney, 79 Ill. App. 53; R. R. Co. v. Byrne, 85 Ill. App. 488-90; Morgan & Wright Co. v. McCutcheon, No. 9462 of this court, not reported. We have carefully read the evidence of the appellee and of the two witnesses Martin and Eieger, these being the only ones who testified to the circumstances of the accident, both in the abstract and in the record, and are of opinion that the verdict can not be said to be clearly and manifestly against the weight of the evidence. There is no conflict in the evidence as to appellee having been a passenger upon appellant’s horse car and that she fell and was injured by the fall. She says that when she “was in the act of getting off they rang the bell and the car began to jerk and 1 fell to the ground backward. * * * The conductor of the car picked me up. He asked me where I lived. He asked me whether I was hurt, so I answered him, ‘I don’t know,’ and he xvrote down my name.” Martin, the conductor, says the plaintiff left the car at its rear end while he was standing on the rear platform, the car standing still; that he did not give the bell to go ahead; that the car had not started when she got off; that he did not see her fall; that she did not fall when she got off the car, but his attention was called by somebod} on the sidewalk; that somebody picked her up and he jumped off the car, went to her and asked if she xvas hurt, and that she said “No,” and that she gave him her name. The witness Eieger, xvho was a police officer, stationed at the crossing, says that he saw the plaintiff fall in the street; that xvhen she fell the car xvas standing still; that after she fell the car started eastward, and that he was busy at the time xvith some xvagons that were there. On his cross-examination he said that he had not seen her before she fell; also that he was in a position where he could observe anybody and everybody that got off there; that she stepped on a foot of a snowbank and slipped down — put her foot on the bank and slipped down on one knee; did not fall over; and again that there were a number of wagons there behind the car which he watched. It is impossible, without copying the evidence of these two witnesses, to give a full understanding of it, and the different circumstances to which they testify. It must be read in the transcript of the record to be appreciated. ' It is contradictory in several respects, notably as to whether plaintiff fell from slipping on a snowbank. The conductor says the pavement was muddy and slippery; that it was snowing — had just started to snow; the snow started a few minutes before and there was not much snow on the ground; while the policeman says, “The snow was piled up there, and there might have been a foot of a snowbank there.” The conductor says he did not pick up the plaintiff, while the policeman says that he spoke to her and that the conductor had already helped her. The conductor sa3s the plaintiff was crying. That she fell, is not contested. The clear preponderance of the evidence is that she was hurt as the result of the fall, but the conductor testifies that when he asked her whether she was hurt she said “ No.” The policeman does not say that she was crying, but that he vrent to her and asked her if she was hurt and “she said one of her legs, her knee, I think, hurt her.” If plaintiff fell when she had walked almost the length of the car after she left it, as testified to by the conductor, it seems remarkable that the conductor should have been so solicitous about plaintiff’s being hurt that he would offer to take her to a drug store when there were ladies there present, as is shown by his evidence. His solicitude in that regard is consistent with apprehension on his part that he might possibly be blamed. And if so, what could the blame have been but for starting the car as plaintiff says was done ? The jury and the trial court saw- and heard these witnesses, as well as the plaintiff, testify, could observe their demeanor and appearance upon the stand, and were therefore in a much better position to determine their credibility than are we by reading the evidence as it appears in the record. The driver of the street car was not called as a witness. This, so far as we can find in the record, is not explained and is not without significance. We do not feel justified in disturbing the verdict as being against the weight of the evidence. Complaint is made that the court struck out the evidence of the conductor that he did not make any report to the company at the time of the plaintiff’s having fallen. If there was any error in this regard, and we are inclined to think there was not, we do not regard it as sufficient to justify a reversal. The four instructions quoted in the statement, which were given for appellee, are criticised as being argumentative and erroneous in other respects, especially the second instruction, which, it is claimed, tells the jury to disregard the number of witnesses in determining the preponderance of the evidence, and that the third instruction was not justified, because there was nothing in the evidence to show what the plaintiff or any one else testified to on a former hearing. We do not regard these instructions so far argumentative as to make them erroneous, especially in view of the very full and favorable instructions given on behalf of appellant, eighteen in number, some of which are not free from criticism in a like respect. We do not regard the second instruction as being open to the criticism that it tells the jury to disregard the number of witnesses in determining the point as to the preponderance of the evidence. It does not exclude from the consideration of the jury that element, but impliedly concedes that this is a proper matter for their consideration. Similar instructions have been held not to be erroneous. Meyer v. Mead, 83 Ill. 19; R. R. Co. v. Fisher, 141 Ill. 614-26. Moreover, if there could, be said to be a fault in this instruction in this respect, it is fully, as we think, obviated by instruction 18, given for appellant, on the same subject. The criticism above noted as to the third instruction, while sustained by the record, in our opinion is no cause for a reversal. It was rather calculated to prejudice the plaintiff than the defendant, as it by implication states that her testimony on a former trial was different from what it was on this trial, when that, as a matter of fact, does not appear from the record'. The other criticisms made of these instructions, as we think, need no special mention, since they do not present any reversible error, nor are they of special importance. Appellant’s instruction ISTo. 27, refused, was, in our opinion, fully covered by instructions 7 and 8 given for appellant; and even if it is not, we think that they, considered in connection with instructions 9, 11 and 12, which were given for appellant, fully instruct the jury upon the point of the refused instruction. We think appellant’s refused instruction IÑTo. 28, should not have been given. Besides being subject to criticism as argumentative, it impliedly requires the plaintiff to prove all the allegations in her declaration before she could recover. There are allegations in the declaration without the proof of which there might be a recovery. Batchelor v. Union S. Y. & T. Co., 88 Ill. App. 395-400. The essential part of the instruction, in so far as it is free from argument, is fully covered by instruction 20 given for appellant. Lastly, it is' said that the damages are excessive, but to this we can not yield our assent. As we have said, we think the clear preponderance of the evidence is that the plaintiff was injured quite seriously as the result of her fall. She remained in bed six or seven months. Prior to her injury her health was good, but since then and up to the time of the trial, which was almost eight years after the injury, her health was poor. The expert evidence on both sides agrees as to that fact. Dr. Moyer, a physician of ■ wide experience in mental and nervous diseases, says that in 1897, when he first examined her “ she was nervous and hysterical; emotional; she cried easily; she was shaky and nervous;” and upon a hypothetical question embodying the essential parts of the evidence bearing upon her injury and the previous condition of her health,, said, on being asked, “that he would attribute her poor health to the accident.” Dr. Greenspahn, who treated her for the injury from about its date for six or seven months following,'testified fully as to her condition immediately following the accident. He says : “ My diagnosis was acute neurasthenia, or, to use a more popular expression, nervous prostration;” and that her “symptoms would certainly be traceable to the fall.” The expert evidence on behalf of the appellant, while in the main agreeing with that of the appellee, is, in substance, that her condition was not due to the injury. The whole evidence considered, we think the jury was justified in finding in accordance with the opinions of Doctors Moyer and Greenspahn, and that the amount of the verdict is sustained by the evidence. Other minor matters presented in the arguments of counsel need no special mention in view of the conclusions reached. The judgment of the Superior Court is affirmed.