City of Chicago v. France

Mr. Justice Ball delivered the opinion of the court. In the course of the trial Dr. Bonner, an expert witness called by appellee, was asked a hypothetical question by her counsel, in which her physical condition before and since the accident was set forth. This question ended with, “What would you say that condition or trouble was due to, or occasioned by?” Upon objection, counsel added, “Would you say it was due to extraneous violence, spontaneous disease, or what other cause ?” Appellant objected to the question as amended, but the court overruled the same, and appellant excepted. The witness answered: “The condition was due to the traumatism, the injury.” Appellant again objected, saying: “I want the record to show that I objected to that question and answer.” The court replied, “Yes, you object and except.” This is plain error. The expert was called upon and was permitted to swear to an ultimate fact in the trial, namely, the cause of appellee’s then physical impairment. He was not asked if such condition might not have been occasioned by the injury, but he was called upon to say and he did say that it was caused by the injury. This is the substitution of the conclusion of the witness for the finding of the jury on an ultimate fact in issue in the case, and therefore it constitutes reversible error. National G. L. & F. Co. v. Meithke, 35 Ill. App., 632; Ill. Cent. Ry. Co. v. Blye, 43 Ill. App., 612; Ill. Cent. Ry. Co. v. Smith, 208 Ill., 608. The question is further objectionable in this: it recites “that the physician found that she was suffering,” etc.,- and that “ he (the physician) concluded then that a plaster cast was necessary,” etc. This is not the statement of a fact or facts, but is a recitation of the conclusion of the physician who attended appellee after her injury. An expert opinion must be based upon facts proved or assumed to be proved, and cannot be founded upon the opinion or conclusion of another person. I Thompson on Trials, sec. 683, p. 504. It appears in the record as shown by the statement of facts that the sidewalk in question was and had been to the knowledge of appellee for more than a year before the date of the accident in a state of utter disrepair and therefore dangerous ; that the roadway, subject to the danger from passing teams and cars, was safe and convenient for use by pedestrians ; and that alongside the walk over the level prairie was a pathway which could be traversed with perfect safety. Appellee knowingly exposed herself to danger when she elected to travel over this rotten walk and therefore assumed the risk of possible injury, and was guilty of contributory negligence which bars her recovery in this case. It was her plain duty to have taken a safer line of travel than was afforded by this walk, when each way was equally convenient. Reasonable minds would not differ from the conclusion that appellee brought this injury upon herself through her own want of proper care and caution. Chicago v. Richardson, 75 Ill. App., 198; Aurora v. Pulfer, 56 Ill., 270; Centralia v. Krouse, 64 Ill., 21; Lovenguth v. Bloomington, 71 Ill., 238; Sandwich v. Dolan, 133 Ill., 181. This case is clearly differenced from those cases wherein the walk was not obviously dangerous, and also from those cases wherein the defective walk was the only convenient way. The judgment of the Superior Court is reversed. Reversed.