Chicago City Ry. Co. v. Biederman

Mr. Justice Waterman delivered the opinion of the court. The sufficiency of the evidence to support the judgment is a proper subject for the consideration of this court, and if found not to be sufficient to sustain the action of the trial court it is the duty of this court to reverse the judgment. Borg v. Chicago, R. I. & P. Ry. Co., 162 Ill. 348; same v. same, 57 Ill. App. 521; Chicago & Erie Ry. Co. v. Meach, 163 Ill. 305; Call v. Beckstein, 173 Ill. 187; same v. same, 69 Ill. App. 616; Jefferson Ice Co. v. Zwicokoski, 78 Ill. App. 646. The accident happened near to' a place where many people cross the street, and when there were children and other people going to church; in the words of the motorman, “ It was a very particular place; you have to look out all the time there.” We have carefully considered the evidence and are of the opinion that therefrom we can not say that the jury were not warranted in finding that the accident was the result of the negligence of appellant and not due to any failure on the part of appellee to exercise such care as was to be expected from a boy of his years and capacity. That which is ordinary care at one time and place is not necessarily so at another. Appellant is bound to operate its cars with reference to that which may be reasonably expected; it is not. obliged to be on guard against the not reasonably to be expected. Its duty just before this accident is to be determined in part by that which it knew of the nature of the place and the number of adults and children making use of the street where the injury occurred. Three persons testifying for the plaintiff state that which they saw as to the conduct of the motorman in charge of appellant’s car to have been that which, if such testimony is to be believed, must be regarded as gross negligence. Contributory negligence can not be imputed to the plaintiff. He is chargeable, only, with such care and discretion as is to be expected of a boy six years of age. We are not asked to consider whether an older person hurt under the same circumstances could have maintained an action against appellant. While in the light of a number of authorities the instruction as to the credibility of witnesses is justly subject to criticism, we do not regard the giving of it as, in this case, reversible error. The jury would not in this instruction, necessarily or presumably understand the word intelligence as meaning the education or learning of a witness, but rather his intelligence as to the facts concerning which he testified. Certainly one does not ordinarily put as much confidence in the report of a fool as in that of a man of intelligence. A witness can not be impeached by his intelligence or lack of it. The instruction is unlike either of those commented upon in Hansell v. Erickson, 28 Ill. 257; C. W. Div. Ry. Co. v. Bert, 69 Ill. 388; Eastman v. West Chicago Street Ry. Co., 79 Ill. App. 585, and Hope v. West Chicago Street Ry. Co., 82 Ill. App. 311-313. Counsel mistake when they say that “ the form of the language” of the instruction held misleading and erroneous in Eastman v. West Chicago Street Ry. Co., and that complained of in the present case “id identical.” The instruction now under consideration is similar to that disapproved of in Barron v. Burke, 82 Ill. App. 116; one, among other features distinguishing it from the latter case, being that in Barron v. Burke, the disapproved instruction declared that from certain things “ the jury must decide on which side is the preponderance.” In the present case the jury were 'told that they had a right to consider certain matter’s. It is urged that the court should have given instructions numbers five and six, asked by appellant. The number of witnesses testifying as to a disputed point is a proper element for a jury to consider; and their consideration should not be limited to “ disinterested ” witnesses, as was practically done by instruction number five. The subject-matter of refused instruction number six was fully covered, and in much better phraseology, by instructions that were given. The defendant asked for nineteen instructions; the court gave seventeen of these, fully covering every phase of the defense presented. Appellant insists that it was unduly restricted in the cross-examination of plaintiff. The plaintiff’s testimony in chief was very brief; he did not thereby attempt to describe the accident or to impute blame to any one or even mention by whom, what means or in what manner he was hurt; nor did he say aught as to his past or present pain, or disability. Cross-examination was permitted as to all the things concerning which he testified in chief. fiTo complaint is made as to limitation of cross-examination of the physician during and as illustrative of whose testimony plaintiff’s leg was displayed. Whether the plaintiff’s injury is permanent does not with certainty appear. The shock and pain to him must have been severe. The damages ($1,000) are not excessive. We find no error warranting a reversal of the judgment of the Circuit Court and it is affirmed.