Posch ex rel. Deming v. Chicago Railways Co.

Mr. Justice O’Connor delivered the opinion of the court. Plaintiff brought suit against defendants to recover damages for personal injuries. There was a verdict and judgment in his favor for $5,500, to reverse which • defendants prosecute this appeal. Between 7:30 and 8:00 o’clock on the evening of September 1, 1917, plaintiff, a boy 11 years old, was riding in the rear end- of a grocer’s delivery wagon which was being driven east in Oakdale avenue, and as the wagon was crossing the west or southbound street car track in Sheffield avenue one of defendants’ cars coming from the north in Sheffield avenue struck the rear end of the wagon. The wagon was pushed or thrown to the southeast and came in contact with the curb or a telegraph pole at that comer. Plaintiff was thrown from the wagon and injured. Defendants argue three reasons why the judgment should he reversed: (1) That the court erred in overruling their motion for a directed verdict; (2) erroneous rulings on instructions; and (3) that the damages are grossly excessive. Sheffield avenue is a north and south street in the City of Chicago and is intersected at right angles by Oakdale avenue. Defendants operated a double line of street cars in Sheffield avenue. On the afternoon and evening in question, Howard Bauernfeind, 17 years old, was employed by a grocer to deliver, goods, and for this purpose was provided with a one-horse wagon. Gustav Fuessle, 16 years old, who was to succeed Bauernfeind, was assisting in delivering the groceries and familiarizing himself with the route. Plaintiff had been riding in the wagon for a considerable period of time before the accident and his presence on the wagon was known to the other two boys. Just before the accident, Bauernfeind was driving the horse at about 6 or 7 miles per hour east in Oakdale avenue, and just before he reached Sheffield he slowed the horse down to a walk. There was a building at the northwest corner of the two streets and when Bauern-feind had gotten far enough east so that he could look north, in Sheffield avenne he saw the street car in question coming south. The car at that time was about 150 feet north of Oakdale avenne. There was a man and woman standing out in Sheffield avenue about 25 feet north of Oakdale avenue signaling the ear to stop. Bauemfeind thought the car was going to take on the two and drove the horse forward at a faster gait. The car had no passengers and was proceeding to the bam as the street car men had completed the day’s work. . It did not stop and before the wagon had cleared the track the ear struck the tail gate or rear end of the wagon. The horse leaped forward and the wagon was pushed, or slued around to the southeast and came in contact with the curb or telegraph pole at the southeast corner. Plaintiff was thrown off the wagon. The horse ran east about one-half a block when the driver succeeded in stopping him. Fuessle also was thrown or fell from the wagon. The three boys that were on the wagon and the man and woman who signaled the car to stop testified for the plaintiff. Their testimony tended to show that the car did not slacken its speed and that it was going at the rate of 15 to 25 miles per hour. For the defendant the motorman and conductor of the car testified, in substance, that the car was traveling at about 10 miles per hour and that as it approached the man and woman in the street the speed was reduced to about 8 miles per hour. The motorman further testified that when the car was about 100 feet north of the man and woman in the street, the man put up his hand signaling the car to stop; that the witness thereupon shut off the power and that when he was about 10 feet from them the man pointed south and they both turned and walked to the west curb indicating that the car in question was not the one they wished to take; that thereupon the witness applied the power and increased the speed of the car. The witness further testified that he saw the driver of the horse slacken up and come almost to a stop west of the tracks; that suddenly the driver speeded up the horse and crossed the track in front of the car; that immediately the power was shut off and the brakes applied but it was too late to avoid the collision; that the ear pushed the wagon around and was brought to a stop and the front end of it when stopped was at about the south side of Oakdale avenue; that the wagon struck the curb and plaintiff, who was sitting on the tail gate, fell off. Witnesses for the plaintiff testified that when the street car stopped it was south of Oakdale avenue, while witnesses for defendants, including a city policeman, testified that the car was stopped in Oakdale avenue. 1. As we understand it, defendantsJ position is that the court should have directed a verdict in their favor for the reason that the accident was the result of the reckless driving of the grocery boy; that they were in no way negligent and that plaintiff did nothing by way of warning the driver and made no attempt to get off the wagon so as to save himself from injury and that these conclusions appear from the undisputed evidence. Upon a consideration of the evidence we think it clear that we would not be warranted in holding that the collision was brought about by the negligent driving of the grocery boy and that the street car men were without fault. While the negligence of the driver could not be imputed to plaintiff, yet he could not recover unless it was shown that he was in the exercise of ordinary care for his own safety. Opp v. Pryor, 294 Ill. 538; Pienta v. Chicago City Ry. Co., 284 Ill. 246. But we think that the question whether plaintiff was in the exercise of ordinary care for his own safety was a. question to be determined by the jury. He testified that he was standing in the rear end of the wagon holding onto a side post which helped to support the wagon top; that when the wagon was near the west side of Sheffield avenue he saw the street car about 150 feet north of Oakdale avenue; that “I didn’t jump off because I didn’t have a chance, it was too dose. I didn’t jump west right over the tail gate of the wagon because the car was coming this wa.y and we were just going over the track. If I had jumped off it would have hit me. I would have got it worse.” We think the question whether plaintiff was in the exercise of ordinary care for his own safety was a proper one for the jury. He knew the driver saw the car and the two persons standing in the street signaling the car to stop. No attempt is made by defendants to point out anything plaintiff should have done in warning the driver or in making any suggestions to him, nor do we think we would be justified in saying that plaintiff could not recover because he did not jump off the wagon. We think the court did not err in refusing to direct a verdict. 2. At the request of plaintiff the court gave the following instruction: “7. In determining upon which side the preponderance of evidence is, the jury should take into consideration the number of witnesses testifying, the opportunities of the several witnesses for seeing,, or knowing the things about which they testify; their conduct and demeanor while testifying; their interest or lack of interest, if any, in the result of the suit; the probability or improbability of the truth of their several statements; and from all of the evidence together with all the other facts and circumstances appearing upon the trial, determine upon which side is the greater weight or preponderance of the evidence.” It is argued that this instruction is wrong for two reasons: (a) It authorizes the jury to determine where the preponderance is on a consideration of matters outside the evidence and (b), it told the jury what they “should” consider instead of what they “might” consider, (a) It is strenuously insisted that the instruction is reversibly erroneous in telling the jury that they should take into consideration “other facts and circumstances appearing upon the trial.” In support of this the cases of Purdy v. People, 140 Ill. 46; People v. McGinnis, 234 Ill. 68; People v. Fox, 269 Ill. 300, and Balenovic v. Anasick, 181 Ill. App. 660, and other cases are cited. In the Purdy case the court told the jury that in determining the degree of credibility to be accorded to the testimony of the defendant in a criminal case they might consider his demeanor and conduct on the witness stand and “during the trial.” In the McGinnis case the instruction said: “The jury might take into consideration the demeanor and conduct of the defendant during the trial” in passing upon his credibility, and in the Fox case the instruction was: “From all the surrounding circumstances appearing on the trial which witnesses are more worthy of credit and to give credit accordingly.” The instructions in these cases were held erroneous because they did not limit the jury to a consideration of the facts and circumstances appearing in evidence but permitted them to consider all the facts and circumstances appearing on the trial. In the Balenovic case the instruction complained of told the jury that from all the “facts shown by the evidence and from all other facts and circumstances” the jury must decide on which side is the preponderance. This instruction was held bad because it did not confine the jury to the facts and circumstances in evidence. Instructions containing language similar to that complained of, while inaccurate, have been held not to be reversibly erroneous in the cases of Hopp v. Chicago City Ry. Co., 170 Ill. App. 72, and Tindall v. Chicago & N. W. Ry. Co., 200 Ill. App. 556, and cases there cited. In the Hopp case the instruction enumerated certain elements the jury might consider in determining the credibility of witnesses and that they might also consider “all the other surrounding circumstances appearing on the trial.” The court there said (p. 73): “A verdict is not directed by this instruction, and instructions in substantially tbe same words bave been time and again approved by tbe courts of tbis State. Chenoweth v. Burr, 242 Ill. 312, and cases there cited, and in North Chicago St. Ry. Co. v. Wellner, 206 Ill. 272, tbe identical instruction bere complained of was approved/’ In discussing tbis same instruction tbe court, in tbe Tindall case, said: “Tbe jury were allowed by it (tbe instruction) to consider all ‘the surrounding circumstances appearing on tbe trial.’ Tbis instruction was criticised by us as of doubtful propriety in Ames v. Thren, 136 Ill. App. 568. It is taken word for word from North Chicago St. Ry. Co. v. Wellner, 206 Ill. 272, and tbe instruction is there approved, though these words bere complained of were not there discussed. Tbe instruction has been approved by tbe Appellate Court, First District, in Hopp v. Chicago City Ry. Co., 170 Ill. App. 72.” Under these authorities we think we would not be justified in disturbing tbe judgment on tbe objection made. Moreover, tbe jury were told in numerous other instructions that, .they must base their finding on tbe evidence. We think tbe defendants were not in any way prejudiced by tbe giving of tbis instruction. (b) Tbe second complaint urged against tbis instruction is that it told tbe jury what they “should” consider instead of telling them what they “might” consider in determining where tbe preponderance lay. Some cases bave criticised tbe use of tbe word “should” in instructions which enumerated certain elements for tbe jury to consider in determining tbe credibility of witnesses or tbe question of tbe preponderance of evidence, while other cases bave approved instructions where tbe word “should” was used. We know of no case where tbe judgment was reversed solely on tbe ground of tbe use of tbe word “should” in such an instruction, and we think none can be found. In Meyer v. Mead, 83 Ill. 19, tbe instruction complained of and under consideration by tbe court told tbe jury; that the preponderance of evidence was not alone determined by the number of witnesses testifying. It further told them that in determining that question the jury “must” also take into consideration other things which were there enumerated. The opinion was hv Mr. Justice Scholfield and it was held that the instruction was unobjectionable. The court there said (p. 21): “It informs the jury that a preponderance of evidence is not to be determined alone by the number of witnesses, but that they should also take into consideration well recognized factors in the determination of its weight. We see no objection to this, and think it improbable the instruction could have misled the jury to appellant’s prejudice.” In Chicago Union Traction Co. v. Yarus, 221 Ill. 641, the court expressly approved the use of the word “should” in a similar instruction. The court, after quoting the instruction, there said (p. 643): “It is urged that the effect of the word Should’ in said instruction was to peremptorily instruct the jury that it should consider only the elements there outlined in determining the question of the preponderance of the evidence, and to exclude from its consideration the element of the number of witnesses, and that it should have been stated in a permissive, rather than in a peremptory, manner. In the case of Meyer v. Mead, 83 Ill. 19, the word ‘must’ was used where ‘should’ appears in the instruction. under discussion, and the giving of said instruction was approved by this court. And in Illinois Steel Co. v. Ryska, 102 Ill. App. 347, the point here presented was made on an instruction identical with the one here under consideration, and the court held the objection was not well taken, and this court affirmed such judgment. (Illinois Steel Co. v. Ryska, 200 Ill. 280.) It was not error to give said instruction.” To the same effect is Deering v. Barsak, 227 Ill. 71. It was there objected that a similar instruction invaded the province of the jury in that it directed them how to determine where the preponderance lay and did not allow the jury in their own way and manner to determine on which side was the preponderance. In holding the objection untenable, the court said (p. 78): “We do not' regard the instruction as an invasion of the province of the jury. The instruction very properly directs the attention of the jury to a number of elements that should be taken into.' consideration in determining where the preponderance of the evidence is. This court has often approved instructions of this character,” citing a number of cases. In Chicago Union Traction Co. v. Hampe, 228 Ill. 346, an instruction told the jury that in determining the question of the preponderance of the evidence “the jury should take into consideration” certain enumerated matters proper to be considered by them, omitting-, however, any reference to the number of witnesses testifying pro and con, and concluded, “and from all these circumstances determine upon which side is the weight or preponderance of the evidence.” The court there said (p. 350): “It omitted one very important consideration, and- for that reason should have been refused. It is doubtful whether an instruction of this character should, in any case, limit the jury to the consideration of matters particularly and specifically mentioned and pointed out in the instruction. It is proper to enumerate elements which they may consider, but they should always be left free to consider all the evidence introduced and all the facts and circumstances shown upon the trial, in determining the crucial question as to where lies the greater weight of the proof.” It will be seen that in that case the instruction was held bad because it omitted the element of the number of witnesses and only authorized the jury to consider the elements mentioned, while it should have told them that they should consider the elements mentioned and all other facts and circumstances in evidence. In Lyons v. Chicago City Ry. Co., 258 Ill. 75, in discussing a similar instruction, the court said (p. 84): “While it may be proper to enumerate elements which the jury may consider, and instruction which tells them they ‘must’ or ‘should’ consider is liable to he misleading. (Chicago Union Traction Co. v. Hampe, 228 Ill. 346.)” To the same effect is People v. Schultz, 260 Ill. 35. We are unable to see how the jury could have been misled by the use of the word “should” instead of the word “may’-’ in the instruction. No proper elements were omitted and the jury were left free to consider all of the evidence in the case. The weight to be given to the elements enumerated and to all of the evidence was left solely to the jury. We think the defendants were not prejudiced by the use of the word “should.” Complaint is also made to the giving of an instruction at the request of plaintiff defining the phrase ‘ ‘ proximate cause. ” We think it would serve no useful purpose to discuss the authorities cited by defendants. It is' sufficient to say that the same definition of proximate cause was given in the case of Wabash R. Co. v. Coker, 81 Ill. App. 660, as in the instruction under consideration. This case was affirmed in 183 Ill. 223. To the same effect are the cases of Smiley v. Barnes, 196 Ill. App. 530, and O’Rourke v. Louisville & N. R. Co., 197 Ill. App. 45. Objection is made to the giving of instructions 10, 12 and 15, and to the refusal of defendants’ instruction 3. The complaint urged against instructions 10, 12 and 15, is that they told the jury that plaintiff must have been in the exercise of ordinary care for his own safety “before and at the time of the accident.” Defendants’ position, as stated by their counsel, is: “The objection we make is not one of time or tense. The objection is that the instruction assumes that an ordinarily prudent person would not have permitted himself to be in the situation plaintiff was in, not only at the time of the- injury but before the time of tlie injury.” It is argued that the evidence shows “plaintiff was negligent for a long time before”;'that he was on the wagon a long time before the accident and that it was jnst as negligent for plaintiff to be on the wagon before the injury as at the time of the injury. We think the instructions are not subject to the criticism made. From the instructions the time within which plaintiff must have been in the exercise of ordinary care for his own safety was not limited to the time of the accident nor immediately before it, and we have heretofore held in the case of Krausz v. Chicago City Ry. Co., 218 Ill. App. 650 (abst.), that in an almost similar situation it was “not negligence per se for a boy of 14 to ride on a wagon, nor is it, necessarily, for him to ride on the rear of a wagon with his legs, from the knees down, dangling over the tail piece.” We have considered the other objection urged against instruction 12 and think it untenable. Nor do we think the refusal to give defendants’ instruction 3 prejudiced defendants. Defendants next contend that the court erred in refusing to give instruction 1 tendered by them. By that instruction it was sought to tell the jury, in substance, that if plaintiff was riding on the wagon against the wishes of the driver and the other boy in charge of the wagon, and if the jury believed from the evidence that plaintiff ‘ ‘ intrusted his own care and safety solely and entirely” to the boys in charge of the wagon, and if the jury believed that this constituted a failure on the part of plaintiff to exercise reasonable diligence, then the verdict should be for defendants. This instruction was properly refused as we think the evidence did not warrant the conclusion that plaintiff intrusted his safety solely to the other two boys. Other instructions told the jury that plaintiff was required to use his faculties and exercise ordinary care for his own safety to avoid being injured or he could not recover. Upon a consideration of all the instructions we think it clear that the jury were informed that plaintiff could not recover unless he used his faculties as an ordinary hoy of his age, capacity and experience would to avoid being injured. Defendants further contend that it was reversibly erroneous for the court to give plaintiff’s instruction 11, which told the jury that even if they believed from the evidence that the driver of the wagon was guilty of carelessness in driving the horse, that such negligence could not be imputed or charged against the plaintiff. We think this was a correct statement of the law. Nonn v. Chicago City Ry. Co., 232 Ill. 378; Pienta v. Chicago City Ry. Co., supra, and Opp v. Pryor, supra. Complaint is made to the giving of plaintiff’s instruction 18 on-the question of damages, on the ground that it permitted the jury to assess damages on account of loss of earning power during his minority. We think the instruction is not subject to the criticism made. Chicago Terminal Transfer R. Co. v. Gruss, 200 Ill. 195. It is finally argued that'the damages are excessive. The evidence discloses that when the street car struck the wagon plaintiff was thrown or fell from the wagon; that he was rendered unconscious and taken to the hospital; that upon examination it was found that he liad sustained a fracture of the neck of the left femur and a wound over the left eye; that he was confined to the hospital for 6 weeks, during the first 4 weeks of which he suffered great pain; that upon leaving the hospital he was taken home where he .was confined to his bed for a few weeks; that he wore an iron brace on the left leg or hip for about 6 months during which time he was obliged to walk with the aid of two crutches; that at the time of the trial, which was a year and one-half after the accident, the evidence tends to show, if he ran or walked any considerable distance, his hip hurt and he would be compelled to sit down for a while. The evidence further tends to show that at the time of the trial there was a bony union over about three-fourths of the extent of the fracture and no such union of the remaining one-fourth; that prior to the injury the normal angle of the neck of the femur was about 117 degrees and that on account of the fracture this angle was reduced to about 90 degrees; that this shortened the leg. There is considerable doubt as to whether the leg was shortened one-half inch or one and one-half incites. Dr. Adams testified for the plaintiff that the shortening was one and one-half inches and that this was shown by tape measurements he made as well as by the X-ray picture introduced in evidence. Dr. Cox, also for the plaintiff, testified that the X-ray showed a shortening of one .and one-half inches and that a measurement made by himself and Dr. Leeming, for the defendants, showed the shortening to be but one-half inch. Dr. Leeming testified that the X-ray showed a shortening of one and one-quarter inches and that the measurements made by himself and Dr. Cox during the progress of the trial, showed the shortening to be one-half. inch. During the trial plaintiff, before the jury, stood with his left foot upon a telephone directory one and one-half inches thick and, when in that position, his shoulders were level. This demonstration tended to show that the shortening was one and one-half inches. In these circumstances we think the question of the extent of the shortening was one for the 'jury to determine. The evidence also tends to show that there was a drooping of the left eyelid and that the eyesight was somewhat impaired. The amount of damages in cases of this character depends upon the" circumstances of the case and is not a matter of mathematical computation. The damages awarded by the jury may be larger than would have been sustained a few years ago, and on the question of the amount the earlier decisions of this State are of little assistance. We cannot, however, be unmindful of the fact that the money value of life and health is appreciating and the purchasing power of money depreciating during recent years. Without deciding whether the amount is larger than we would have awarded had the responsibility been ours, we think it is not so excessive as to require interference on our part. De Fillippi v. Spring Valley Coal Co., 202 Ill. App. 61; Delohery v. Quinlan, 210 Ill. App. 321; Girdzus v. Van Etten, 211 Ill. App. 533. The judgment of the circuit court of Cook county is affirmed. Affirmed. Taylor, P. J., and Thomson, J., concur.