United Breweries Co. v. O'Donnell

Mr. Justice Ball delivered the opinion of the court. Appellant contends that the declaration is defective in that it contains no allegation that the next of kin, who had the custody and control of the deceased and for whose benefit this action was brought, were in the exercise of due care and caution for the welfare of the deceased. Had appellant demurred to the declaration because of this omission, the demurrer would have been well taken. Instead of so doing, it filed the general issue. This defect is one that is cured by verdict. The law is that when anything is omitted from the declaration which must be proved in order that the plaintiff may have a verdict, and there be a verdict for him, such omission is not ground in arrest of judgment. City of East Dubuque v. Burhyte, 173 Ill., 555; U. S. Brewing Co. v. Stoltenberg, 113 Ill. App., 437. Counsel for appellant further contend that the verdict is against the weight of the evidence, and that therefore the judgment should be set aside and a new trial be granted. In their brief they say that “The testimony introduced by the defendant was diametrically opposed to that of the plaintiff.” Two Witnesses who saw the boy run down, and one other witness who saw the wagon just before the accident, and again so soon after that it had not yet come to a standstill, substantially agree upon the material facts as claimed in the theory of appellee. Two other witnesses who saw the accident state the facts as claimed in the theory of appellant, and they are supported in many particulars by four witnesses. The evidence on the one side is wholly irreconcilable with that on the other. When the testimony is thus conflicting and is beyond the power of the jury or of the court to harmonize, the credibility of the conflicting witnesses is primarily for the jury; and an appellate tribunal will not disturb their conclusion in that regard if the testimony of the successful party, considered by itself, is clearly sufficient to sustain the verdict, unless it can see that error has intervened in the trial, or that the verdict is clearly and manifestly against the weight of the evidence. Netcher v. Bernstein, 110 Ill. App., 489, and Supreme Court cases cited. The testimony shows, without dispute, that none of the bones of this child were broken, and that the only mark on his body was a round bruise about the size of an ink well on his left side just below the ribs. Such an injury might be made by a wagon tongue, and could not well result from a heavy wheel passing over the body of the boy. This ease has been twice tried, and this is the second verdict rendered in favor of appellee. There is no reason to believe that a third trial would result differently. We cannot set aside this verdict as against the weight of the evidence. The newly discovered evidence presented by appellant on the motion for a new trial was partly impeaching and partly cumulative, and is not conclusive. A'new trial will not be granted upon evidence of that character. The People v. McCullough, 210 Ill., 488, 518, and cases cited; C. C. Ry. Co. v. Bohnow, 108 Ill. App., 346. Whether the deceased at the time he was killed was in the exercise of such care for his own safety as should be expected of a child of the same age, intelligence, experience and ability to comprehend danger in similar circumstances, under the evidence in this case was a question for the jury and not for the court. Chicago U. T. Co. v. O’Donnell, 211 Ill., 351. Appellant contends that the first instruction given at the request of appellee is defective because it omits the phrase, “under similar circumstances.” If this be error, it is cured by given instruction Bo. 20, tendered by appellant, wherein, in describing the care this boy should have exercised for his personal safety, the phrase “under similar circumstances” is used. We do not consider the other objections taken to this instruction as material Instruction Bo. 2, given at the request of appellee and objected to by appellant, is approved in C. & P. St. Ry. Co. v. Brown, 193 Ill., 274. The third instruction given on behalf of appellee was-approved, in the face of the same objection as is here made, in U. S. Brewing Co. v. Stoltenberg, 211 Ill., 534. Appellant further contends that it was error for the court to refuse its tendered instruction Bo. 45, which would have informed the jury that there was not sufficient evidence to-warrant a recovery under the second count, and that as to that count their verdict should be not guilty. It is unnecessary to marshal the evidence upon the question as to whether or not the driver of this wagon was an incompetent person, because the first count is a good one, and the evidence fairly tends to sustain it. In such case it is not error to refuse to instruct the jury to find for the defendant upon another count although there is no evidence to sustain the latter count. C., W. & V. Coal Co. v. Moran, 210 Ill., 16. It is urged that it was error to admit the evidence of the witness Sawinski that “the wagon was coming at full speed.” Similar statements as to speed have been held to be evidence of a fact and not the expression of mere opinion. C. C. Ry. Co. v. Bundy, 210 Ill., 45; C. C. Ry. Co. v. Matthieson, 212 Ill., 292. The recalling of the witness Bruhnke after appellant had closed its case was clearly within the discretion of the trial judge, and therefore is not error. Appellant complains that the verdict of $3,775 is excessive. The trial was a fair one, the given instructions stated appellant’s case fully, and it does not appear that the jury were influenced by any improper motive. The statute declares that “in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person”—thereby, in express words, committing the finding of the amount of damages within the limit fixed by the act in this class of cases to the jury. Hence, unless we find from the evidence that the amount of the verdict is necessarily excessive, or that the verdict does not represent the honest judgment of the jury, or that they were moved by passion or prejudice, or that they wholly misconceived the testimony, we have no right to disturb their finding. Hone of these defects appearing, we agree with the conclusion reached by the trial judge, that the damages as found are not excessive. There being no reversible error in this case, we affirm the judgment of the Circuit Court. Affirmed.