{ "id": 2519968, "name": "Donk Brothers Coal & Coke Company v. John Tetherington", "name_abbreviation": "Donk Bros. Coal & Coke Co. v. Tetherington", "decision_date": "1906-09-14", "docket_number": "", "first_page": "256", "last_page": "261", "citations": [ { "type": "official", "cite": "128 Ill. App. 256" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "57 Ill. App. 469", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 856689 ], "opinion_index": 0, "case_paths": [ "/ill-app/57/0469-01" ] }, { "cite": "64 Ill. App. 584", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5176030 ], "opinion_index": 0, "case_paths": [ "/ill-app/64/0584-01" ] }, { "cite": "68 Ill. App. 437", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5200083 ], "opinion_index": 0, "case_paths": [ "/ill-app/68/0437-01" ] }, { "cite": "68 Ill. App. 92", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5198882 ], "opinion_index": 0, "case_paths": [ "/ill-app/68/0092-01" ] }, { "cite": "107 Ill. App. 397", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2571072 ], "opinion_index": 0, "case_paths": [ "/ill-app/107/0397-01" ] }, { "cite": "180 Ill. 130", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3199396 ], "opinion_index": 0, "case_paths": [ "/ill/180/0130-01" ] }, { "cite": "101 Ill. App. 664", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2596554 ], "opinion_index": 0, "case_paths": [ "/ill-app/101/0664-01" ] }, { "cite": "113 Ill. App. 241", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 872864 ], "opinion_index": 0, "case_paths": [ "/ill-app/113/0241-01" ] }, { "cite": "118 Ill. App. 387", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 874316 ], "opinion_index": 0, "case_paths": [ "/ill-app/118/0387-01" ] }, { "cite": "118 Ill. App. 240", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 874211 ], "opinion_index": 0, "case_paths": [ "/ill-app/118/0240-01" ] }, { "cite": "104 Ill. App. 147", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2586057 ], "opinion_index": 0, "case_paths": [ "/ill-app/104/0147-01" ] }, { "cite": "212 Ill. 32", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 } ], "analysis": { "cardinality": 605, "char_count": 11086, "ocr_confidence": 0.491, "pagerank": { "raw": 9.440762521595924e-08, "percentile": 0.5169673984853943 }, "sha256": "5dc55ee43c8148f5cef0ce572b59a7bb6972f944e9b3836fa22432e910f0c378", "simhash": "1:ada665f0b80a971c", "word_count": 1919 }, "last_updated": "2023-07-14T19:13:56.609878+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Donk Brothers Coal & Coke Company v. John Tetherington." ], "opinions": [ { "text": "Mr. Justice Creighton\ndelivered the opinion of the court. '\nThis was ah action in case, in the Circuit Court of Madison county, by appellee against appellant, to recover damages for injury to appellee\u2019s land alleged to have been caused by the negligence of appellant. Trial by jury. Verdict and judgment in favor of appellee for $1,500.\nThe declaration consists of three counts. The first charges that appellant wrongfully and negligently placed a dump for the refuse matter from its coal washer in such place that when heavy rains and water came, coal slack, slate, sulphur and other substances were carried into a stream flowing through appellee\u2019s farm and polluted the stream, and cast large quantities of such refuse matter upon his land, whereby it was damaged and made unfit for cultivation; the second charges that the operation of appellant\u2019s coal washer caused coal slack, slate and other substances-from its mine to be carried into the stream, polluting it and depositing large quantities of refuse matter upon appellee\u2019s land; and the third charges that the operation of appellant\u2019s coal mine and washer caused the waters flowing through appellee\u2019s land to become unclean and unwholesome, depriving appellee of the use of the same for watering his stock.\nIn the view we take of this case it is not proper for us to discuss the weight of the evidence further than to state that we are of opinion that the trial court did not err in refusing to direct the jury to return a verdict in favor of appellant. .\nDuring the progress of the trial, a witness was allowed to state, over the objection of appellant, his observation and experience as to the effect of coal slack upon the productiveness of land when washed upon the land from a coal mine. The evidence disclosed that the observation and experience of this witness was confined to the effect upon his own land, of slack washed upon it from a mine situated about one mile and a half from appellant\u2019s mine. The objection interposed was a general objection, counsel simply saying, \u201cobjected to.\u201d\nIt is insisted here that the court erred in overruling appellant\u2019s objection to this evidence, on the ground that appellee had not proven that the conditions were sufficiently similar. If this specific objection had been made in the trial court, it would doubtless have received due consideration, but having-not made it there, we think it too late to make it here. \u201cA party objecting to evidence must point out the objection specifically, and thereby put the adverse party on his guard and afford him an opportunity to obviate it.\u201d \u201cGrounds of objections to evidence not specifically made in the court below will not be considered in the Appellate Court.\u201d \u201cWhen the objection to the admission of evidence is of such a character that it may be removed by further proof, it must be stated specifically at the time the evidence is offered.\u201d The authorities in support of these general and salutary rules are so numerous and so accessible to all lawyers and courts, that citation of them would appear pedantic.\nA witness for appellee had testified on the trial that the crops on appellee\u2019s land were not as good as they had been, and that part of the land was damaged 50% of its. value on account of the coal slack that had been washed onto it.' On cross-examination this witness admitted that he had testified in another case where damage to the same land was in question, that the damage to the crops was caused by water, and that he then gave damages by water as the sole reason for the failure of crops on that land. He was then further asked on cross-examination: \u201cQ. How much has the water damaged it?\u201d Counsel for appellee objected, and the court sustained the objection. This was error. The question asked was within the purview of proper cross-examination, and the objection to it should have been overruled.\nCounsel complain of the refusal of the court to give the 16th and 17th instructions, asked on behalf of appellant. The 16th is as follows: \u2018\u2018 The court instructs the jury that the defendant company is not responsible for the building or breaking of the Kneedler dam, and if you find from the evidence that plaintiff\u2019s land was injured by the coal slack, slate and other substances from defendant\u2019s mine, and that said injury was caused solely by the breaking of the dam built by the defendant company in the spring of 1904, and that said dam broke by reason of the Kneedler dam first breaking and that the dam at defendant\u2019s mine would not have broken but for the breaking of the Kneedler dam, then you must find defendant not guilty.\u201d\nUnder the evidence of this case, as it now stands in the record, this instruction should have been given. There was no error in refusing the 17th. All that is proper in it is fully embraced in appellant\u2019s 11th given instruction.\nThe most serious and damaging error disclosed in this record is the statements made by counsel for appellee in his closing argument to the jury. The amount of damages that should be recovered in this suit, if any, was a most difficult question for the jury to determine, and was the point in the case where they would be more likely to err than any other, under the evidence as it appeared in the case. It appeared that the farm was in possession of a tenant, and therefore all damages to crops and mere temporary injuries accrued to him. The only damage that accrued to appellee was such as affected the market value of the land, and upon that question the evidence was unusually conflicting and contradictory, consisting of opinions of witnesses pro and con, with little actual experience or data upon which to base them, and ranging from $75 per acre to no damage at all.\nWith this state of evidence before the jury, one of the attorneys for appellee in the closing argument said: \u201cThe court after hearing the evidence has seen fit to allow the plaintiff to amend his declaration and increase the amount sued for from $2,500 to $3,500, because the evidence justified it.\u201d And \u201cMr. Forman ran for Congress in 1902. He did not know anything then about hiring men to come into court to testify. He has hired men to come and testify in this case. The State of Illinois does not license men to go out and hire other men to come into court and swear away the rights of farmers.\u201d An objection was interposed, and the court sustained the objection. Counsel made disclaimer, saying that he ' ' did not intend to say that the court had passed upon the evidence\u201d * * *. And that he \u201cdid not intend to charge Mr. Forman had hired witnesses to swear falsely\u201d * * *. And the court directed counsel \u201cto desist from personalities, and confine himself to the evidence, in his argument. \u2019 \u2019\n\u201cSuch a statement by counsel is wholly indefensible; and unless it can be seen that it did not result in injury to the defendant the judgment ought to be reversed on account of it. The effects of such (statements) and attacks may be obviated by the action of the court in some cases, while in others it may be effective in arousing passion and prejudice notwithstanding the direction of the court.\u201d Wabash Railway Co. v. Billings, 212 Ill. 32 (41). The ruling of the trial court at that time, though correct and proper, \u201cdoes not always remove the ill effects of (such) misconduct.of counsel. * * * 'Trial courts should not hesitate to use their authority to restrain all efforts of attorneys to obtain verdiets by using (such) unfair means * * * and whenever such restraining influences do not effect the purpose, the fruits of such conduct ought to be taken away by granting a new trial. \u2019 \u2019 \u2019 Chicago Union Traction Company v. Lauth, 216. Ill. 176 (183\u20144). \u201cIt is true the learned trial judge declared this statement to be improper, and thereupon counsel for appellee (the attorney himself who made the improper statement) asked that the remark be stricken out and it was stricken out, and the trial judge did all he could to counteract it, but the harm had been done. * * * The action of the court did not wholly nullify the effect of such misconduct. * * * How far it was potent we cannot say. Of this, however, we are sure: it is better that appellee be put to the trouble and expense of a new trial than that this court should appear to countenanc\u00e9 and commend such violations of legal ethics. \u2019 \u2019 West Chicago Railroad Company v. Kean, 104 Ill. App. 147. \u201cNotwithstanding improper remarks have been objected to and objections thereto sustained, a reversal may be ordered on account thereof if the remarks are of such a prejudicial character as not to have been effaced in effect by the sustaining of the objection thereto.\u201d McKenna v. McKenna, 118 Ill. App. 240. In addition to the foregoing, the following are only a few of the long list of cases in which statements and arguments by counsel to the jury have been held to be improper and erroneous, viz.: Chicago City Ry. Co. v. Heydenburg, 118 Ill. App. 387; Supreme Lodge Mystic Workers of the World v. Jones, 113 Ill. App. 241; George A. Fuller Co. v. Darragh, 101 Ill. App. 664; West Chicago Street Ry. Co. v. Musa, 180 Ill. 130; Chicago City Ry. Co. v. Ahler, 107 Ill. App. 397 (406); Taylor v. Harris, 68 Ill. App. 92; West Chicago Street Ry. Co. v. McKeating, 68 Ill. App. 437; P., C., C. & St. L. Ry. Co. v. Warren, 64 Ill. App. 584; Chicago City Ry. Co. v. Barron, 57 Ill. App. 469.\nFor the errors above noted, the judgment of the Circuit Court is reversed and the cause remanded.\nReversed and remanded.", "type": "majority", "author": "Mr. Justice Creighton" } ], "attorneys": [ "Warnock, Williamson & Burroughs and Forman & Whitnel, for appellant. - \u2022", "W. E. Hadley and Burton & Wheeler, for appellee." ], "corrections": "", "head_matter": "Donk Brothers Coal & Coke Company v. John Tetherington.\n1. Objection\u2014when should he specific. * Objections should be specific where they are of such a character as if made specific would enable the examiner to make correction.\n2. Cross-examination\u2014when restriction of, ground for reversal. Where the court refuses to permit matter material to the issue to be elicited upon cross-examination, where the inquiry made is within the purview of the cross-examination, a reversal will follow.\n3. Argument of counsel\u2014what improper hy way of. The following language held to constitute an improper and harmful argument:\n\"The court after hearing the evidence has seen fit to allow the plaintiff to amend his declaration and increase the amount sued for from $2,500 to $3,500, because the evidence justified it.\u201d\n\u201cMr. Forman ran for Congress in 1902. He did not know anything then about hiring men to come info court to testify.\u2019 He has hired men to come and testify in this case. The State of Illinois does not license men to go out and hire other men to come into court and swear away the rights of farmers.\u201d\n4. Argument of counsel\u2014what does not cure improper. The mere fact that objection to an improper argument is sustained, does not necessarily cure the injury inflicted.\nAction in case. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding. Heard In this court at the February term, 1905.\nReversed and remanded.\nOpinion filed September 14, 1906.\nWarnock, Williamson & Burroughs and Forman & Whitnel, for appellant. - \u2022\nW. E. Hadley and Burton & Wheeler, for appellee." }, "file_name": "0256-01", "first_page_order": 274, "last_page_order": 279 }