{ "id": 2558659, "name": "Chicago City Railway Co. v. Anthony White", "name_abbreviation": "Chicago City Railway Co. v. White", "decision_date": "1903-10-08", "docket_number": "", "first_page": "23", "last_page": "29", "citations": [ { "type": "official", "cite": "110 Ill. App. 23" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "84 Ill. App. 532", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5260033 ], "opinion_index": 0, "case_paths": [ "/ill-app/84/0532-01" ] }, { "cite": "164 Ill. 518", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5502245 ], "opinion_index": 0, "case_paths": [ "/ill/164/0518-01" ] }, { "cite": "129 Ill. 132", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2963168 ], "weight": 2, "pin_cites": [ { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/ill/129/0132-01" ] }, { "cite": "60 Ark. 76", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1903653 ], "opinion_index": 0, "case_paths": [ "/ark/60/0076-01" ] }, { "cite": "19 N. Y. 299", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 497703 ], "opinion_index": 0, "case_paths": [ "/ny/19/0299-01" ] }, { "cite": "13 Johns. 350", "category": "reporters:state", "reporter": "Johns.", "case_ids": [ 374530 ], "opinion_index": 0, "case_paths": [ "/johns/13/0350-01" ] }, { "cite": "85 Ill. 284", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2776094 ], "opinion_index": 0, "case_paths": [ "/ill/85/0284-01" ] }, { "cite": "101 Ill. App. 95", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2597459 ], "opinion_index": 0, "case_paths": [ "/ill-app/101/0095-01" ] }, { "cite": "36 Ill. App. 564", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5012666 ], "opinion_index": 0, "case_paths": [ "/ill-app/36/0564-01" ] }, { "cite": "6 Ill. App. 569", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4746456 ], "opinion_index": 0, "case_paths": [ "/ill-app/6/0569-01" ] }, { "cite": "173 Ill. 169", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5537676 ], "opinion_index": 0, "case_paths": [ "/ill/173/0169-01" ] }, { "cite": "57 Ill. 265", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5240307 ], "opinion_index": 0, "case_paths": [ "/ill/57/0265-01" ] }, { "cite": "128 Ill. 545", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5411400 ], "opinion_index": 0, "case_paths": [ "/ill/128/0545-01" ] } ], "analysis": { "cardinality": 662, "char_count": 13470, "ocr_confidence": 0.522, "pagerank": { "raw": 1.978508130822158e-07, "percentile": 0.740281576261782 }, "sha256": "b47d053c66bda44efd404babf2f80b76f504ffdc80c83c40e036366fbe4b33a1", "simhash": "1:cddbfd42deb32497", "word_count": 2361 }, "last_updated": "2023-07-14T15:01:47.315792+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Chicago City Railway Co. v. Anthony White." ], "opinions": [ { "text": "Mr. Presiding Justice Ball\ndelivered the opinion of the court.\nThis is an action for personal injuries received August 15, 1897. On that day appellee, then fourteen years of age, was riding upon the west footboard of one of appellant\u2019s cars 'going north along State street in the city of Chicago. While the car was in motion and not at a street crossing, he jumped from the car in front of another car belonging to appellant going south upon an adjacent track, thereby receiving the injuries of which he complains.\nThe jury returned a verdict finding defendant guilty, and assessing plaintiff\u2019s damages at $7,500. They also returned a special finding, to wit:\n\u201cHas the plaintiff proved by a preponderance of all the evidence in the case that\u2019the defendant\u2019s employe willful! v injured plaintiff or willfully caused him to be injured ? Answer: \u2018Ho.\u2019\u201d\nAppellant entered a motion for judgment non obstante veredicto, which motion was overruled.\nAppellant\u2019s motion for a new trial was overruled and judgment was entered upon the verdict, from which it perfected this appeal.\nGeorge W. Geary, a witness called by appellee, testifies that he noticed a boy on the west side of the car standing-on the footboard; that the conductor rushed through the aisle of the car; that the boy jumped off the car in front of the train that was going south which struck and ran - over him, and that the north-bound car ran 100 feet after the boy was hurt before it stopped. He- further testified, over repeated objections and exceptions by counsel for appellant, that after the car had stopped and the boy was being carried to the sidewalk, and about one minute after the accident, he turned to the conductor and said, \u201c I suppose you are satisfied now; you have probably killed that boy.\u201d The conductor answered, \u201cI have orders to drive those boys off, and I must do it.\u201d The witness continued :\n\u201c1 said to him that he ought to use a little judgment, even driving boys off; that I didn\u2019t believe it was necessary to kill boys in order to prevent them from jumping on and off cars. \u2018Well,\u2019 he says, \u2018 I know my business,\u2019 and I says \u2018I doubt whether you do or not. I am going to write a letter to the company,\u2019 I says, \u2018stating what I have seen today, and stating your actions; I don\u2019t believe,\u2019 I says, \u2018 that you are a competent conductor to run any car. In fact,\u2019 \u00cd says, \u2018 passengers are in danger of their lives, in my estimation, under your conductorship.\u2019 Just then an o\u00c9cer came up and I asked him if it was not rula ble to arrest conductors under conditions of this kind.\u201d\n\u201cMr Page: That is outside the conversation. I ought to object to it. I wish to preserve an objection and exception.\u201d\n\u201cThe Court: You asked the officer, did you?\u201d \u201cA. The police officer. He came up to the conductor at the time awhile, but the conductor went off and the officer said he would take care of the matter. That about ended our conversation, for a crowd gathered around. I didn\u2019t have anything more to say However, I wrote a letter to the company stating what I had seen and my judgment of the actions of 'the conductor. I saw some one connected with the company in response to that letter.\u201d\n\u201c Mr. Page: If that is finished I want to renew my objection to each sentence and phrase he has stated.\u201d\n\u201c The Court: I doubt whether this conversation is admissible. I don\u2019t think that is proper.\u201d\n\u201c Mr. Page.: I move to strike it out.\u201d\nThe Court: Yes, it may go out, all of it.\u201d\nThis conversation, which took place after the incident was closed and had no connection with -it, can not be regarded as part of the res gestee. It was history and not a part of the accident. Hence it was mere hearsay evidence, and as such inadmissible.\nIn Chicago W. D. Ry. Co. v. Becker, 128 Ill. 545, it was claimed that the deceased, a boy, had been thrown from a street car, thereby causing his death. After his injury he got up and was going to the sidewalk, or had just reached it, when he was asked what was the matter. He replied that the conductor caught him by the arm and threw him off the car. This evidence was admitted over objection. Upon appeal the Supreme Court say:\n\u201cWe think that the admission of proof as to what was said by the deceased, under the circumstances thus detailed, was erroneous. The declarations were not a part of the res gestos. They were not made at the time of the accident, nor did they explain or characterize the manner in which the accident occurred. They were not concurrent with the injury, nor uttered contemporaneously with it so as to be regarded as a part of the principal transaction. They were made after the injury was received and were merely narrative of what had taken place. They were spoken by the deceased as his answer, when he was asked \u2018what was the matter.\u2019 The true inquiry, according to all the authorities, \u2018is whether the declaration is a verbal act, illustrating, explaining or interpreting other parts of the transaction of which it is itself a part, or is merely a history or a part of a history of a completed past affair. In the one case it is competent, in the other it is not.\u2019 \u201d\nThat this is the well settled law of this state is also shown by the following cases: C. & N. W. Ry. Co. v. Fillmore, 57 Ill. 265; Pennsylvania Co. v. McCaffrey, 173 Ill. 169; C. & N. W. Ry. Co. v. Howard, 6 Ill. App. 569; C., B. & Q. R. R. Co. v. Johnson, 36 Ill. App. 564; Springfield C. Ry. Co. v. Puntenney, 101 Ill. App. 95.\nIt is urged by appellee that the court, in the presence of the jury, finally excluded this evidence; and that therefore appellant was not thereby prejudiced.\nWhere, over objection, incompetent evidence has been received in a jury trial, it must appear that the verdict rendered was not affected by it, or the judgment will be reversed, even though it was afterward stricken out. Such testimony may influence the jury, notwithstanding the efforts of the court to counteract it. Adams v. Russell, 85 Ill. 284; Penfield v. Carpender, 13 Johns. 350; Erben v. Lorillard, 19 N. Y. 299; Rogers v. State, 60 Ark. 76.\nThe main issue here was whether or not appellant was guilty of negligence as charged in the declaration. This evidence strongly tended to determine that question against appellant. We can not say that the jury, having heard this evidence, could entirely exclude it from consideration when they came to form their verdict. For this error we are compelled to reverse the case.\nWhile we think the special finding is inconsistent with the general verdict, and therefore should have prevailed over it (Sec. 58c, Ch. 110, R. S. 1901; C. & N. W. Ry. Co. v. Dunleavy, 129 Ill. 132; Ebsery v. Chicago City Ry. Co., 164 Ill. 518), appellant did not move for judgment upon it. The motion made was for judgment non \u25a0 obstante veredicto. Such a motion can not be allowed when presented by the defendant. It is a privilege given solely to' the plaintiff. \u201cJudgment of non' obstante veredicto is a judgment rendered in favor of the plaintiff without regard to the verdict obtained by the defendant.\u201d Bouv. L. Dic., title, Judgment; Teehan v. Union Bridge Co., 84 Ill. App. 532; Shinn\u2019s Practice, Sec. 984. By not making a motion for judgment upon the special finding, in the trial court, appellant is estopped to raise that question here.\nAs this case must be sent back to the trial court, the consideration of other points presented by counsel is unnecessary.\nThe judgment of the Superior Court is reversed and the cause remanded.\nAdditional Opinion.\nSince the opinion was handed down in this case appellant, by motion, has called attention to a mistake of fact contained in that opinion. Therein it is said:\n\u201cWhile we think the special finding is inconsistent with the general verdict, and therefore should have prevailed over it (citing the statute and cases), appellant did not move for judgment upon it. The motion made was for judgment non obstante veredicto. Such a motion can not be allowed when presented by the defendant.\u201d\nSo reads the common law record. Appellant calls our attention to the bill of exceptions where the motion actually made by it was a request to the court to enter judgment in its favor upon the special finding rendered in said cause. The common law record is made up by the clerk of the trial court, while the bill of exceptions is made up by the judge who tried the cause. The proper place for a motion for judgment for the defendant upon a special' finding is in the bill of exceptions. Hence when the common law record and the bill of exceptions contradict1 each other in that particular, the latter governs. It follows that the opinion, so far as quoted, is wrong in its facts, and therefore incorrect in its conclusions. This error has led us to re-examine the declaration and the special finding in this case.\nThe first count of the declaration sets up the possession and operation of the street railway by appellant; its duty in the control and management of its cars and in the employment of competent and capable persons to handle said cars; yet, etc., the conductor of said car \u201cthen and there negligently and willfully, in his capacity of conductor and servant of defendant, suddenly and without warning, and with great violence, and in a threatening manner, with intent to frighten plaintiff and eject him from said car, jumped at and rushed upon plaintiff, who was riding as aforesaid upon, to wit, the west side of said car,\u201d etc.\nThe third count charges the doing of substantially the same acts by the conductor \u201cnegligently and willfully.\u201d\nThe fourth count charges that the same acts were done \u201cnegligently and carelessly, and -without the exercise of common intelligence and prudence.\u201d\nThe fifth count charges that the same acts were done \u201cnegligently and imprudently and without right or reason.\u201d\nIt thus appears that the first and third counts charge the acts as done willfully, while the fourth and fifth counts allege that the acts were done negligently. Under the two latter counts a recovery could be had for negligence that was not willful.\nThe special finding with its answer reads:\n\u201cHas the plaintiff, proved by a preponderance of all the evidence in the case that the defendant\u2019s employe willfully injured plaintiff, or willfully caused him to be injured \u00cd\u201d\n\u201c Ho.\u201d\nThis special finding does not cover the entire' declaration. Without intending to willfully injure appellee the conductor may have intended to drive him from the car, and with that end in view may have advanced upon him in a way and manner that was negligent, imprudent and unreasonable. .\nIn.order that a special finding shall be controlling it must not only be inconsistent with the general verdict, but must be irreconcilable with that verdict so as to be incapable of being removed by any evidence admissible under the issues. (C. & N. W. Ry. Co. v. Dunleavy, 129 Ill. 132, 148.) Viewed in the light of the declaration and of this rule of practice as laid down by our Supreme Court, this special finding, while it is inconsistent with, is not irreconcilable -with the general verdict, and therefore does not control it. Taking the verdicts together it must be presumed that the jury found the appellant guilty of mere negligence\u2014that is, of negligence without the epithet of \u201c willful.\u201d\nFor these reasons we are still of the opinion that the cause should be reversed and remanded, and it is so ordered.", "type": "majority", "author": "Mr. Presiding Justice Ball" } ], "attorneys": [ "William J. Hynes and Samuel Page, attorneys for appellant; Nathaniel G. Sears and Mason B. Starring, of counsel.", "Goodrich, Vincent & Bradley, attorneys for appellee; Warren Hichols, of counsel. '" ], "corrections": "", "head_matter": "Chicago City Railway Co. v. Anthony White.\n1. Evidence\u2014Wliat is Not a Part of the Res Gestae.\u2014A conversation which took place after the incident was closed and had no connection with it, can not be regarded as part of the res gestae.\n2. Same\u2014Test as to Whether a Declaration is a Part of the Res Gestae.\u2014The true test as to whether a declaration is part of the res gestae is whether the declaration is a verbal act, illustrating, explaining or interpreting other parts of the transaction of which it is itself a part, or is merely a history or a part of a history of a completed past affair. In the one case it is competent, in the other it is not.\n3. Same\u2014Practice Where, Over Objection, Incompetent Evidence Has Been Received in a Jury Trial.\u2014Where, over objection, incompetent evidence has been received in a jury trial, it must appear that the verdict rendered was not affected by it, or the judgment will be reversed, even though it was afterward stricken out. Such testimony may influence the jury, notwithstanding the efforts of the court to counteract it.\n4. Same\u2014notion for Judgment Non Obstante Veredicto, Can Not be Allowed When Presented by the Defendant.\u2014A motion for a judgment non obstante vet'edieto can not be allowed when presented by the defendant. It is a privilege given solely to the plaintiff.\n5. Same\u2014\u00edF7iaf is Necessary in Order that a Special Finding Shall be Controlling.\u2014In order that a special finding shall he controlling, it must not only be inconsistent with the general verdict, but it must be irreconcilable with that verdict so as to be incapable of being removed by any evidence admissible under the issues.\nTrespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge presiding. Heard in this court at the October term, 1902.\nReversed and remanded.\nOpinion filed October 8, 1903.\nAdditional opinion filed November 16, 1903.\nWilliam J. Hynes and Samuel Page, attorneys for appellant; Nathaniel G. Sears and Mason B. Starring, of counsel.\nGoodrich, Vincent & Bradley, attorneys for appellee; Warren Hichols, of counsel. '" }, "file_name": "0023-01", "first_page_order": 45, "last_page_order": 51 }