{ "id": 872863, "name": "Ignatz Kozlowski v. City of Chicago", "name_abbreviation": "Kozlowski v. City of Chicago", "decision_date": "1904-04-12", "docket_number": "Gen. So. 11,076", "first_page": "513", "last_page": "517", "citations": [ { "type": "official", "cite": "113 Ill. App. 513" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "76 Ind. 260", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1946658 ], "opinion_index": 0, "case_paths": [ "/ind/76/0260-01" ] } ], "analysis": { "cardinality": 524, "char_count": 9611, "ocr_confidence": 0.558, "pagerank": { "raw": 9.516401828518599e-08, "percentile": 0.5242400232600434 }, "sha256": "c7cdf2e087f09922de839ab62a54e53776843919814abc1e1a8fef650f2c860f", "simhash": "1:b8cd943b355684be", "word_count": 1681 }, "last_updated": "2023-07-14T15:22:42.184794+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Ignatz Kozlowski v. City of Chicago." ], "opinions": [ { "text": "Mr. Justice Stein\ndelivered the opinion of the court.\nMot satisfied with the amount recovered, appellant appeals from a judgment of $350 rendered in his favor against appellee for damages to his person from a fall upon a sidewalk. He fell into a hole with his leg up to the thigh.\nAppellant is the only wfitness on the subject of his injuries and their effect. On the direct he testified : \u201c I cannot walk very well; my left side pains me; it hurts me there; I was hurt there that night; I cannot make a good step; the testicles were all injured; I was laid up seven, months as a result of the injury. * * * Dr. Petrovitz attended me about six times during a period of five weeks. * * * I cannot cohabit with my wife since the accident, and 1 cannot work too hard.\u201d Upon re-direct in answer to the question, \u201c How much wages do you earn now,\u201d he said, \u201c I get 17-J cents an hour and in 19011 got 20 cents an hour.\u201d He admitted that he \u201cdrank one whisky\u201d the evening of the accident before it happened. Two policemen, one of whom picked him up from the sidewalk, testified to his being under the influence of liquor. They and another officer took him to a hospital where he was stripped and no bruises or discolorations found on his leg or other part of his body. The attending physician made a thorough examination and said \u201c he was not a fit subject for a hospital; he couldn\u2019t find anything the matter with him.\u201d\nUnder these circumstances we cannot say that the damages found by the jury are too small. Ho one testifies that the changed condition of appellant was due to the accident, and the jury, even if they believed everything he claimed in that regard, may well have doubted the existence of any causal connection between the accident and his subsequent disabilities. That he earned two and one half cents an hour less after the accident than before may, under the evidence, have been due to a fall in wages as well as to any other cause. The assessment of damages is peculiarly a matter for the jury and will not be interfered with unless it is entirely clear that they have erred.\nThe action of the court in refusing an interpreter to the witness Gubella is complained of. Whether an interpreter shall be called is within the discretion of the court, and its refusal is not error unless there has been an abuse of that discretion. From an examination of the record we are entirely satisfied that no interpreter was needed. When the questions were put in plain, simple, every-day language, the witness had no difficulty either in understanding or in answering them.\nOne of the policemen testified to the declarations of the physician concerning the condition of appellant after he had examined him at the hospital. These declarations were made in the presence of appellant and were therefore properly received.\nAfter proof had been heard tending to show that appellant was somewhat intoxicated at the time of the accident, it was sought to rebut this proof by showing his reputation for sobriety. The court declined to go into the matter, and it is claimed this was error. Ao authorities are cited in support of the contention. Appellant had no right to prove his reputation, especially since he himself when on the stand denied having been drunk and other witnesses called by him also gave their opinions in that regard.\nUpon the direct appellant was asked, \u201c What has been the effect of the injury on your health ? \u201d ' The court ruled rightly in sustaining an objection to the question. It ..called for the mere conclusion and opinion of the witness.upon a matter as to which, not being an expert, he was incompetent to testify.\nThere was no error in refusing the instruction on the subject of damages. It was fully covered by the one given. And the court did not err in instructing the jury that \u201c this preponderance is not necessarily determined by the number of witnesses testifying on either side \u201d without telling them wherein the preponderance consists. It was appellant\u2019s privilege to supply the omission by tendering an instruction of his own.\nIt seems somewhat singular that complaint should be made of the court\u2019s declining to stop the trial and wait for a physician to appear as a witness for appellant who had not been subpoenaed, but had simply promised to attend. The matter was wholly within the discretion of the court. Counsel was asking for a favor, and not insisting upon a right.\nIt is claimed that the attitude of the trial judge was unnecessarily severe and fault-finding. This however did not prevent the jury from finding appellee liable, and does not appear to have influenced them in the award of damages. One of the policemen was, on cross-examination, asked by appellant\u2019s counsel, \u201c How did he (appellant) act there on the sidewalk that made you think he was drunk ? \u201d Without any objection being made to the question the court of its own motion remarked: \u201c Oh, this officer says he has been on the force thirteen years and he ought to know \u25a0whether a man is drunk or not.\u201d The question was a proper one, and the action of the court, interfering as it did with the province of the jury, was erroneous. The error, however, was harmless. It bears solely upon the question of appellee\u2019s liability for the accident to appellant.\nThe court refused to hear or consider affidavits on the motion for a new trial from which it appeared that one of the jurors was asleep during the taking of the testimony. While the affidavits should have been heard and considered, they are clearly insufficient for the purpose for which they were offered as they do not show how long the juror was asleep except \u201c for a considerable time \u201d nOr what testimony was received during the time. Won constat but that the nap occupiedless than a minute and the testimony may have been unimportant. In order to entitle appellant to a new trial it should have been made to appear affirmatively that the juror\u2019s inattention was prejudicial to him. In McClary v. The State, 76 Ind. 260, where the accused was found guilty of assault with intent to commit murder and his punishment fixed by the jury at imprisonment in the penitentiary for two years, the court held that the mere falling asleep for a short time by a juror during the argument of counsel for the accused does not of itself constitute a sufficient cause for a new trial.\nOther points are made but they have no bearing upon the amount to be recovered by appellant.\nThe judgment appealed from is affirmed.\nAffirmed.\nMr. Justice Baker having presided at the hearing of this cause in the trial court, did not participate in the foregoing opinion.", "type": "majority", "author": "Mr. Justice Stein" } ], "attorneys": [ "J. W. Sutton, for appellant.", "John F. Smulski, City Attorney, and William Rothmann, for appellee; William J. Stapleton and D. H. Wamsley, of counsel." ], "corrections": "", "head_matter": "Ignatz Kozlowski v. City of Chicago.\nGen. So. 11,076.\n1. Verdict\u2014when, not set aside for inadequacy of amount. The assessment of damages is peculiarly a matter for the jury and will not be interfered with unless it is entirely clear that they have erred.\n2. Interpreter\u2014when not error to refuse. Whether an interpreter shall be called is within the discretion of the court and the refusal of an interpreter is not error unless there has been an abuse of such discretion.\n3. Declaratio\u00b0ns op third party\u2014when, competent. The declarations of a physician made after an examination of the plaintiff, and in his presence, with respect to the result of such examination, are competent against the plaintiff in an action of personal injuries.\n4. Intoxication\u2014what not competent to rebut direct evidence of. It is not competent to rebut direct evidence of intoxication to show a reputation for sobriety.\n5. Injury\u2014what not competent to prove extent of. It is not competent to ask the plaintiff, who is not an expert, \u201cWhat has been the effect of the injury on your health,\u201d as such question calls for a mere conclusion and opinion.\n6. Preponderance op evidencedwhen instruction upon, is not im proper. It is not improper for the court to instruct the jury that \u201c this preponderance is not necessarily determined by the number of witnesses testifying on either side,\u201d without telling them wherein the preponderance consists.\n7. Witness\u2014when court cannot be required to wait fpr. The trial court is not obliged to stop the trial of a cause to wait for a witness who has not been subpoenaed, but who has merely promised to attend the trial.\n8. Remarks of trial court\u2014when, improper. A remark of the trial court, as follows : \u201c This officer says he has been on the force thirteen years, and he ought to know whether a man is drunk or not,\u201d is improper where the question at issue is one as to whether the plaintiff was intoxicated, but is harmless where the plaintiff recovered and his sole complaint upon appeal is as to the size of the verdict.\n9. Affidavits\u2014rolien, competent to show conduct of juror. It is competent to show by affidavits that a juror slept during a portion of the trial-of a cause.\n10. Conduct of juror\u2014when sleeping during a trial is not ground for reversal. Affidavits which show that a juror was asleep during a portion ot the trial of a cause, do not call for a reversal where such affidavits do not show how long such juror slept, and what testimony was taken during the period of- his nap; in other words, such affidavits to be material must show that the conduct of the juror in question was prejudicial.\nAction on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.\nAffirmed.\nOpinion filed April 12, 1904.\nJ. W. Sutton, for appellant.\nJohn F. Smulski, City Attorney, and William Rothmann, for appellee; William J. Stapleton and D. H. Wamsley, of counsel." }, "file_name": "0513-01", "first_page_order": 529, "last_page_order": 533 }