Fisk v. Chicago Water Chute Co.

Mr. Presiding Justice Ball delivered the opinion of the court. The first contention of the plaintiff is that the verdict is contrary to the weight of the evidence. The testimony of the plaintiff and of her witnesses tended to prove that the boat was released and started down the inclined plane before she had a chance to seat herself and to adjust her skirts, and that in consequence of this negligence she was thrown up in the air when the boat struck the water and fell back in the boat with such violence as to injure her. The evidence of the defendant’s witnesses tended to prove that upon the day in question no boat was released while any passenger was standing. - The negligence, if any, of the defendant was primarily a question of fact for the jury. The evidence upon this question was clearly conflicting, and incapable of being reconciled. It was the duty of the jury to find where the truth lay in this conflicting testimony. In order to do this they had to pass upon the credibility of the several witnesses and the weight to be given to the testimony of each of "them. They found the defendant not guilty. The trial judge approved their finding. We cannot see that the jury were moved by any improper motive, or that the verdict is clearly and palpably against the weight of the evidence. Under these circumstances we have no right to set aside the judgment and finding. Bradley v. Palmer, 193 Ill. 90. The second contention of the plaintiff is that the court erred in requesting, upon its own motion, special findings without having submitted them to and without specially notifying the plaintiff of his intention to make such requests. To this point is cited P., C., C. & St. L. Ry. Co. v. Smith, 207 Ill. 486. Because of differing circumstances that case is not binding here. There the trial court submitted to the jury but one of the two sharply contested points in issue. Here the two questions being contested were submitted to them. In the Smith case the court recognize the fact that “There might be cases where the submission of questions by the court without notice would not be ground for reversal, when it could be seen that there was no injurious effect.” In Chicago City Ry. Co. v. Jordan, 116 Ill. App. 650, we recognized this distinction. See, also, Norton v. Volzke, 158 Ill. 402. As the .plaintiff was not prejudiced by this action of the trial court, it does not constitute ground for reversal. The record does not state that the court gave these interrogatories to the jury without having first submitted them to the plaintiff. In Rogers v. Hall, 3 Scam. 5, the Supreme Court say that a bill of exceptions under the Practice Act is “not to be considered as a writing of the judge, but is to be esteemed as a pleading of the party alleging the exception; and if liable to the charge of ambiguity, uncertainty or omission, it ought, like any other pleading, to be construed most strongly against the party who prepared it.” The rule as thus laid down has never been departed from. Owing to the silence of the record in this regard, the plaintiff cannot be advantaged by this assignment of error. The next contention of the plaintiff is that the facts of this case bring it within the doctrine of res ipsa loquitur; and therefore instruction number three, given at the request of the defendant, is erroneous in placing the burden of proof as to the negligence of the defendant on the plaintiff. The allegation of negligence contained in the only count of the declaration when the trial was had, is that the defendant started the car before plaintiff was fairly seated in it. The plaintiff offered evidence tending to prove this allegation and caused the jury to be instructed on that theory. A party plaintiff cannot try his case upon one theory, and then on motion for a new trial, or on appeal, shift his ground to another and a different theory. A defendant is not called upon to meet a case not made by the pleadings. The opposite rule would result in uncertainty and confusion in trials, and almost necessarily result in injustice to the defendant. The primal object in pleading is to produce an issue, affirmed on one side and denied on the other, and the trial is had for the sole purpose of determining the issue thus made. In Field v. French, 80 Ill. App. 78, a suit to recover for personal injuries, in which the declaration charged specific acts of negligence, the court say: “The general ride is that when the plaintiff makes affirmative allegations, as in this case, of negligence of the defendant and the defendant pleads the general issue, the burden is upon the plaintiff all through the case to establish his case—that is, prove the specific negligence alleged—by a preponderance of the evidence, and he cannot recover if the defendant’s evidence is such as to evenly balance that of the plaintiff.” See, also, 1 Jones on Ev., Sec. 175; W. Chicago St. Ry. Co. v. Martin, 154 Ill. 523; C. & E. I. Ry. Co. v. Driscoll, 176 Ill. 330. The contention of plaintiff that the trial court erred in giving improper instructions in behalf of the defendant, and erred in refusing to give proper instructions upon the request of the plaintiff and improperly modified proper instructions asked by the plaintiff, in our opinion can be disposed of in a few words. Aided by the briefs of counsel, we have carefully examined each of the instructions to-which counsel refer, whether given, refused or modified, -and we do not find reversible error in the action of the trial judge concerning any of them. The complaint that improper evidence was admitted, on •the part of the defendant, and that proper evidence tendered by the plaintiff was excluded, is not well founded in •■any particular. Believing that this case was fairly tried and that- no •reversible error intervened, we affirm the judgment of the .Superior Court. Affirmed.