{ "id": 2822025, "name": "Morris Novitsky, Administrator, Appellee, v. Knickerbocker Ice Company, Appellant", "name_abbreviation": "Novitsky v. Knickerbocker Ice Co.", "decision_date": "1913-05-08", "docket_number": "Gen. No. 18,004", "first_page": "188", "last_page": "196", "citations": [ { "type": "official", "cite": "180 Ill. App. 188" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "242 Ill. 409", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5653655 ], "pin_cites": [ { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/ill/242/0409-01" ] }, { "cite": "127 Ill. App. 432", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2514289 ], "opinion_index": 0, "case_paths": [ "/ill-app/127/0432-01" ] }, { "cite": "243 Ill. 290", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3414001 ], "pin_cites": [ { "page": "294" } ], "opinion_index": 0, "case_paths": [ "/ill/243/0290-01" ] }, { "cite": "148 Ill. App. 499", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2645312 ], "opinion_index": 0, "case_paths": [ "/ill-app/148/0499-01" ] }, { "cite": "108 Ill. App. 477", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2567906 ], "pin_cites": [ { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/ill-app/108/0477-01" ] }, { "cite": "129 Ill. 557", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2964370 ], "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/ill/129/0557-01" ] }, { "cite": "158 Ill. App. 286", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5318639 ], "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/ill-app/158/0286-01" ] }, { "cite": "206 Ill. 523", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5599163 ], "weight": 2, "pin_cites": [ { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/ill/206/0523-01" ] }, { "cite": "252 Ill. 228", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3439114 ], "opinion_index": 0, "case_paths": [ "/ill/252/0228-01" ] }, { "cite": "212 Ill. 292", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3310725 ], "opinion_index": 0, "case_paths": [ "/ill/212/0292-01" ] }, { "cite": "243 Ill. 114", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3413191 ], "pin_cites": [ { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/ill/243/0114-01" ] } ], "analysis": { "cardinality": 676, "char_count": 16215, "ocr_confidence": 0.499, "pagerank": { "raw": 1.2240919645422112e-07, "percentile": 0.6014902799352395 }, "sha256": "e331868689f4e613d3918e83e707195022c6c6132710f86f8856dd1d6412c60a", "simhash": "1:ffaef8c10e5bace2", "word_count": 2808 }, "last_updated": "2023-07-14T19:28:40.413930+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Morris Novitsky, Administrator, Appellee, v. Knickerbocker Ice Company, Appellant." ], "opinions": [ { "text": "Mr. Presiding Justice G-ridley\ndelivered the opinion of the court.\nThis action was brought by appellee to recover damages from appellant, defendant below, for causing the death of Samuel Novitsky, a boy under seven years of age, on the evening of October 5, 1903. The boy was run over on Archer avenue, Chicago, by a wagon owned and operated by defendant. It was charged that the accident happened by reason of the negligence of the driver of the wagon, while the boy was crossing Archer avenue, at or near its intersection with State street, and while he was exercising due care for his own safety. The first trial of the case resulted in a disagreement of the jury. On the second trial the jury found the defendant guilty and assessed plaintiff\u2019s damages at $4,000. This appeal is prosecuted t\u00f3 reverse the judgment entered upon that verdict.\nState street runs north and south and 19th street runs east and west, intersecting State street at right angles. At this intersection Archer avenue commences, running in a southwesterly direction from State street. At the time of the accident there was a frame building on the northwest corner of State and 19th streets used for a saloon. At the southwest corner of State street and Archer avenue there was a drug store. A cross-walk, defined by flagstones, ran north and south (in line with the west sidewalk of State street) from the drug store to the saloon. This cross-walk from curb to curb was about 115 feet in length and passed over the space made by the conjunction of Archer avenue and 19th street with State street. About 60 feet west of this cross-walk there was a frame \u201cflat-iron\u201d building between 19th street and Archer avenue. The sidewalk south of this building (being the north sidewalk of Archer avenue) came into conjunction with the sidewalk north of this building (being the south sidewalk of 19th street) east of said building, and there both sidewalks ended, the most easterly part of which was about 30 feet west of the cross-walk above mentioned. There were two street car tracks in State street. Connecting with these tracks were two other tracks .which turned into Archer avenue. For some distance west of State street, Archer avenue was paved with asphalt.\nThe deceased lived with his parents at No. 1824 State street, a location north of 19th street. The father of the boy rah a tailor shop at No. 1916 State street, a location south of Archer avenue. About four o\u2019clock in the afternoon the boy, returning from school, stopped at his father\u2019s shop, where he remained until about 5:45 p. m., when he started for his home unaccompanied. While going across Archer avenue in a northerly or northeasterly direction on or west of said cross-walk, and when he was just north of the north street car track in Archer avenue, he collided with the south horse of the team of defendant, was thrown down and one or both of the left wheels of the wagon passed over his body and he suffered injuries from which he died in a few minutes. The team of defendant, approaching from the north on State street, had \u2022 turned into Archer avenue and was moving in a southwesterly direction in that street at the time of the accident. The testimony of the several witnesses as to the details of the accident is very conflicting. It is plaintiff\u2019s contention that the boy was injured while he was crossing Archer avenue on, or immediately west of, said cross-walk and while defendant\u2019s team was being driven at a fast trot. It is defendant\u2019s contention that the accident happened 50 to 75 feet west of said cross-walk; that defendant\u2019s team was being driven southwesterly in Archer avenue, immediately north of the north track in that street, at a slow trot; that there were one or two street cars standing on Archer avenue immediately west of said cross-walk; that the boy suddenly \u201cdarted out\u201d from around the west end of said standing car or cars in front of the moving team, which could not be stopped in time to prevent the accident.\nThe conclusions that we have reached will require a retrial of the case, and hence we should not give an opinion as to the weight of the evidence.\nCounsel for defendant contend that the trial court erred in refusing to allow plaintiff\u2019s witness, Joseph F. Golden, to answer certain questions asked of him on cross-examination for the purpose of discrediting his testimony on material facts. Golden had testified, inter alia, that at the time of the accident he was standing on the curb at the northwest corner of State and 19th streets, that there was nothing to obstruct his view down Archer avenue and that there were no street cars standing on Archer avenue west of the cross-walk; that the boy was just north of the north track on Archer avenue, walking north on the flagstone cross-walk; that after the boy was struck the wagon went about 50 feet; that both the driver and his companion on the front seat \u201clooked to me like they were intoxicated.\u201d On cross-examination the witness was asked the following questions:\n\u201cQ. Did you testify before the coroner\u2019s inquest that the boy was going across the street northeast on Archer avenue towards State street when he was hit?\nQ. Did you at the coroner\u2019s inquest testify that the wagon came to a stop 10 or 15 feet after the boy was struck?\nQ. Did you testify at the coroner\u2019s inquest that in your opinion the driver wa\u00e1 sober at the time of the accident?\nQ. Did you testify as follows on the former trial: \u2018Q. Were there any cars standing on Archer avenue at that time? A. There was one car on the south track waiting for a grip-car that was going north, to be attached to the grip-car. \u2019 \u201d \u25a0\nThe court, on objection being made, refused to allow the witness to answer any of these questions and defendant excepted. We are of the opinion that the court erred in so ruling. Math v. Chicago City Ry. Co., 243 Ill. 114,122; Chicago City Ry. Co. v. Matthieson, 212 Ill. 292; Craig v. Trotter, 252 Ill. 228.\nCounsel for defendant also contend that the court erred in refusing to admit in evidence the entire deposition of Golden, taken at the coroner\u2019s inquest on October 6, 1903. The original deposition, or written statement, purporting to be signed by him, was shown him on cross-examination, and he testified that he signed \u201cthat sheet,\u201d that he did not remember whether or not the statement had been read over to him by the coroner before he signed it, but that he might have said, on the former trial of this case, that he believed the statement was read over to him before he signed it. At the conclusion of the testimony offered on behalf of plaintiff, defendant\u2019s attorney submitted' to the court \u201cthe original document which came from the coroner\u2019s office,\u201d and offered in evidence the following, contained in said statement of Golden which he had previously testified that he had signed, viz.: \u201cI do think that the driver was sober,\u201d and \u201cThe boy was walking across the street going northeastward on Archer avenue towards State street.\u201d On objection being made, the court refused to admit in evidence the above portions of the statement. Defendant\u2019s attorney then offered in evidence \u201cthe whole statement\u201d of Golden before the coroner, but on objection its admission in evidence was refused and defendant excepted. The above portions of the statement of Golden, being contradictory on material points to his sworn testimony on the trial of this case, were proper to be introduced in \u00e9vidence as tending to discredit him as a witness. Illinois Cent. R. Co. v. Wade, 206 Ill. 523, 529. But, in our opinion, this error in the court\u2019s ruling as to said portions of the statement was cured by the subsequent proceedings in the trial. At the conclusion of all the evidence, plaintiff\u2019s attorney, evidently realizing that said portions of Golden\u2019s statement offered by defendant should have been received in evidence, stated to the court out of the hearing of the jury that \u201cthe record may show that we withdraw our objection to the offering in evidence of that part of the statement offered by counsel for defendant off the witness Golden,\u2014the statement being the one he made and signed before the coroner\u2019s jury and about which he was asked on cross-examination with a view of impeachment. I do not understand the whole statement is offered,\u2014 only those portions of it. As to those our objections are withdrawn.\u201d Defendant\u2019s attorney then read to the jury the portions above mentioned of Golden ?s statement before the coroner, but defendant\u2019s attorney did not then again urge that the entire statement should be read to the jury, neither did he then urge that certain other portions of Golden\u2019s statement be read to the jury, which other portions he now claims were also material as tending to discredit Golden\u2019s testimony on the trial, and on that account the entire statement should have been admitted. Those other portions are: \u201cAfter the accident the wagon went about 10 or 15 feet and came to a stop when the driver jumped off,\u201d and \u2018 \u2018 There was an Archer Ave. car waiting on Archer Ave.\u201d We are not disposed to hold, under the facts of this case, that the entire statement should have been admitted in evidence. It was quite lengthy and contained much matter which had no tendency to contradict Golden\u2019s testimony. The portions which did contradict his testimony were admissible. Illinois Cent. R. Co. v. Wade, supra; Jacobs v. Electric Coal Co., 158 Ill. App. 286, 288. And such portions as were offered by defendant\u2019s attorney were finally admitted in evidence.\nAt the commencement of the introduction of evidence on behalf of defendant, a certified copy of the verdict of the coroner\u2019s jury was offered by defendant\u2019s attorney. Objection to its introduction was made and the court reserved its ruling. Later on in the trial defendant\u2019s attorney renewed his offer. The introduction of the paper was objected to as being \u201cincompetent, irrelevant and immaterial\u201d and the objection was sustained. Defendant\u2019s attorney then offered \u201cthe last sheet of the original files of the coroner\u2019s records\u201d (the verdict), and its admission was also refused, to both of which rulings defendant excepted and the same are assigned as error. The verdict is signed by the members of the jury and by the coroner, and says that the deceased came to his death \u201cfrom shock and crushing injuries received, caused by being struck by a horse and run over by the two left hand wheels of ice wagon #214 belonging to the Knickerbocker Ice Co. and driven by Martin Johnson on Archer Ave. near the cor. of State and 18th Sts. on October 5th, A. D. 1903. And from the evidence presented to us this jury finds that had the C. C. S. K. W. Co. not blockaded Archer Ave. with cars on both sides of street crossing this accident would not have occurred and deceased not lost his life in such a manner, and in this respect censure the above named company.\u201d\nSection 14 of chapter 31 of onr statutes, relating to the duty of coroner\u2019s jurors, provides:\n\u201cIt shall be the duty of the jurors, as sworn aforesaid, to inquire how, in what manner, and by whom or what, the said dead body came to its death, and of all other facts of and concerning\u2019 the same, together with all material circumstances in anywise related to or connected with the said death, and make up and sign a verdict, and deliver the same to the coroner. \u2019 \u2019 In U. S. Life Ins. Co. v. Vocke, 129 Ill. 557, 566, it is said:\n\u201cWe are satisfied, both upon principle and authority, that the coroner\u2019s inquisition was admissible in evidence. The inquisition was made by a public officer, acting under the sanction of an official oath, in the discharge of a public duty enjoined upon him by the law, and * * * we see no reason why it should not be competent evidence tending to prove any matter properly before the coroner which appears upon the face of the inquisition. We do not hold that such evidence is conclusive, but only that it is competent evidence to be considered.\u201d\nThe coroner\u2019s verdict in this case states that the boy was struck when \u201con Archer Ave. near the cor. of State and 18th Sts.,\u201d and also states, in effect, that Archer avenue was at the time blockaded with cars on both sides of the street crossing. There was a sharp conflict in the testimony of the witnesses at the trial of this case as to just where the boy was when struck, whether on the crossing or west of it, and whether or not at the time there were cars standing west of said cross-walk. We think it clear that defendant was entitled to have the verdict of the coroner\u2019s jury admitted in evidence and that the trial court erred in refusing to admit it. See also National Woodenware & Cooperage Co. v. Smith, 108 Ill. App. 477, 479; Stollery v. Cicero S P. St. Ry. Co., 148 Ill. App. 499, affirmed 243 Ill. 290, 294; O\u2019Donnell v. Chicago & A. R. Co., 127 Ill. App. 432.\nComplaint is made of certain instructions offered by plaintiff and given to the jury. Where the evidence is very conflicting on material points, as in this case, it is particularly important that the instructions should be accurate. Lyons v. Ryerson & Son, 242 Ill. 409, 416. We are of the opinion that some of the instructions complained of were not strictly accurate, but we deem it unnecessary further to extend this opinion by discussing them. Complaint is also -made of certain statements made by the attorney for plaintiff in his closing argument to the jury. We do not think that they were proper, but on the new trial they doubtless will not be repeated.\nThe judgment of the Superior Court is reversed and the cause remanded.\nReversed and remcmded.", "type": "majority", "author": "Mr. Presiding Justice G-ridley" } ], "attorneys": [ "Amos C. Miller, and Benjamin O\u2019Hara, for appellant.", "Clarence S. Darrow and Edgar L. Masters, for appellee; Edgar L. Masters, of counsel." ], "corrections": "", "head_matter": "Morris Novitsky, Administrator, Appellee, v. Knickerbocker Ice Company, Appellant.\nGen. No. 18,004.\n1. Evidence\u2014discrediting rntness by Ms testimony before coroner's inquest. Plaintiff\u2019s intestate, a boy of seven years of age, was run over and killed by an ice wagon at the intersection of two streets crossing at right angles, and the conjunction of a third street, there being a cross-walk, defined by flagstones, between such third street and the west line of one of the other streets. Plaintiff contended that his intestate, while crossing on or immediately west of such cross-walk was killed by the wagon coming at a fast trot. Defendant claimed that the accident happened 50 to 75 feet west of said cross-walk, that the wagon was driven at a slow trot, and that the boy suddenly darted out from around the rear end of a standing car, standing on such third street, in front of the moving team. A witness for plaintiff testified that there was no car standing on such track, that the boy was walking north on the flagstone cross-walk, that after the boy was struck, the wagon stopped within about fifty feet and that the driver looked as if he were intoxicated. On cross-examination such witness was asked, for the purpose of discrediting his testimony, whether he had not testified before the coroner that the boy was crossing northeast on such third street, that the wagon came to a stop ten or fifteen feet after the accident, that in his opinion the driver was sober, and that there was a car standing on such third street. Held, that refusal to allow answers was error.\n2. Coroners\u2014verdict admissible. In an action for wrongful death, the verdict of the coroner\u2019s jury is admissible as evidence to be considered but not conclusive.\n3. Cobohebs\u2014evidence before, admissible to discredit witness. Where a witness in an action for wrongf\u00fal death has testified to certain facts, such parts of his original testimony at the coroner\u2019s inquest as show him to have made different statements there, are admissible to discredit him, but other portions are properly excluded.\n4. Instbuctions\u2014must be accurate when evidence conflicting. Where the evidence is very conflicting on material points it is particularly important that the instructions should be accurate.\n. Appeal from the Superior Court of Cook county; the Hon. Richabd E. Bubiie, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.\nReversed and remanded.\nOpinion filed May 8, 1913.\nRehearing denied May 22, 1913.\nAmos C. Miller, and Benjamin O\u2019Hara, for appellant.\nClarence S. Darrow and Edgar L. Masters, for appellee; Edgar L. Masters, of counsel." }, "file_name": "0188-01", "first_page_order": 206, "last_page_order": 214 }