City of Collinsville v. Eichmann

Mr. Presiding Justice Bigelow delivered the opinion of the court. Appellant’s first contention is, that the court erred in refusing to permit two city street commissioners and two civil engineers to testify that in their opinion the crossing of the drain or gutter was reasonably safe for travel over it. If the witnesses had been asked their opinions as to how or in what manner a reasonably safe drain and crossing for the public to travel over could have been made in this particular place, they should have been allowed to answer; but since the answer to the question as asked, must necessarily have been an attempted solution of the very question the jury were called upon to determine, they were properly excluded, for however competent an expert witness may be in the line of business about which he is called to testify, his testimony can not be treated as infallible nor made to take the place of a verdict of a jury. The second contention of counsel for appellant is substantially the same as the first and requires no different disposition.- The third contention is stated as follows: “ The duty of the city of Collinsville was to use due care to make its streets reasonably safe for public travel and use. It was not an insurer against possible accidents. If it constructed its streets in the manner approved by those experts whose business for over thirty years has been the construction of brick streets, it has complied with the requirements of the law.” The first part of the contention correctly states the law, but the latter part of it does not, since it does not follow as a matter of law, that the opinion of any two or more men. whatever their experience in the construction of streets, crossings and gutters may have been, can absolutely settle the fact as to whether even their own constructions have been built in such a manner as to meet the full requirements of the law, in regard to being reasonably safe for travelers or pedestrians to travel upon or over. The fourth point made has relation to the amount of damages given by the jury, which will be noticed hereafter. The fifth point made by appellant’s counsel is, that a rough plat of the streets where they intersect, and of the crossing and gutter, drawn by a young man who was familiar with the place and had often driven his horse across the gutter or drain, and who was a witness in the case, and used the plat to explain the situation of the place where appellee’s horse, and where the horse of the witness, had slipped and fallen, and which was allowed to go to the jury against the objection of appellant, was improperly put in evidence. We are unable to concur in the views of the counsel, and especially so since the counsel consented that the jury might visit and examine the place where appellee met with the injury, and which was supposed to be represented by the plat; and since the jury did visit and examine the place, the introduction of the plat in evidence, however imperfect it may have been, could have done appellant no harm. Two or three other points are made but we do not deem them of sufficient importance to require special mention, except perhaps the point in regard to the amount of damages found by the jury, and as to this, it is true that the father of the boy did not, for some time after the boy was injured, think that a claim for damages against the city would be made, as he did not know how serious the injury was, and it was not until he called a surgeon from St. Louis, that he learned the real condition of the boy. There is no ground for the suggestion made, that the medical attention of the boy for a time after the injury was neglected, and that much of the damage to the boy has arisen from the neglect. It is true that the first physician called to attend the boy did'not ascertain the extent of the injury the boy had met with, but he seems to have done all that he deemed necessary under the circumstances, and we can discover no ground for complaint of either physician. No serious complaint is made about the giving or refusing instructions, and we fail to discover any substantial fault in them. There are in the case no important questions of law to be determined, and while some of the evidence shows that the boy was negligent, the question whether his negligence, considering his age, materially contributed to his injury, has been settled by the jury in his favor. As the jury, by examining the place where the boy was injured, were unanimous in finding that the appellant city was guilty of negligence that was the cause of the injury, any court should hesitate before setting aside such a verdict. As to the amount of damages found by the jury it would be somewhat larger than it ought to be, but for the probability that the boy will never fully recover. With this probability before us, we are unable to say the verdict is excessive. Finding no error in the record that calls for a reversal of the judgment it is affirmed.