Richardson v. Nelson

Mr. Presiding Justice Smith delivered the opinion of the court. It is urged in behalf of appellant that the declaration ■does not state a cause of action. As abstracted by appellant the declaration is insufficient, but the abstract is imperfect. The additional abstract furnished by appellee shows that the amended declaration states a cause of action. The plaintiff was a child one year and nine months old at the time of the accident. So far as the exercise of due care' is concerned, he could not be guilty of contributory negligence. Chicago City Ry. Co. v. Tuoby, 196 Ill. 410. The evidence does not tend to show contributory negligence on the part of the plaintiff’s parents. It is claimed on behalf of appellant that the court erred in admitting immaterial and irrelevant evidence, as to the breaking of other windows in the building where plaintiff resided and the breaking of the platform of the building, and the deed showing ownership of the premises from which the ice fell. This evidence was all competent for obvious reasons. The daknage done by the falling- ice would tend to show the force with which it fell. The deed tended to show ownership in appellant and his control of the property at the time of the accident. We find no substantial error in the rulings of the court upon the testimony of the witness Crozier. Objections were properly sustained to leading questions, and to answers giving the conclusion of this witness as to whether the plaintiff walked normally or not. Counsel for appellant applied to the court to be allowed to have a physician present in court examine the plaintiff, or to appoint a physician to make the examination. The court did not err in refusing the request. The P. D. & E. R. Co. v. Rice, 144 Ill. 227. The second instruction given at the request of appellee is erroneous in that it instructs the jury to assess damages for loss of time and inability to work in the future, if any, without excluding the time of his minority. But, at the instance of appellant, the court instructed the jury that the plaintiff could not recover for medical services or for diminution of earning power during minority. Where the instructions as a series state the law correctly as these instructions do, the error in the second instruction is obviated, especially where the jury were not likely to have been misled. The Toledo W. & W. Ry. Co. v. Ingraham, 77 Ill. 309; Christian v. Irwin, 125 Ill. 619. When counsel for appellee in his closing argument to the jury attempted to go outside of the case and state to the jury verdicts that had been returned in other cases, objections were made and the court sustained the objections. We do not think that what is here complained of, conceding it to be improper, progressed far enough, or was of so serious a character as to justify a reversal of the judgment. There is abundant evidence in the record to sustain the judgment. The negligence of appellant is proved beyond any reasonable doubt. There is evidence showing that appellee was seriously injured. There is evidence tending to show permanent injury. We do not think the judgment should be disturbed upon the ground that it is for too large an amount. For do we think the damages claimed are remote. The judgment is affirmed and the costs of the additional abstract will be taxed against appellant. Affirmed.