{
  "id": 5378928,
  "name": "Samuel Cohen, Administrator, Appellee, v. City of Chicago, Appellant",
  "name_abbreviation": "Cohen v. City of Chicago",
  "decision_date": "1916-01-03",
  "docket_number": "Gen. No. 21,418",
  "first_page": "377",
  "last_page": "382",
  "citations": [
    {
      "type": "official",
      "cite": "197 Ill. App. 377"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "224 Ill. 194",
      "category": "reporters:state",
      "reporter": "Ill.",
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        3332813
      ],
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    {
      "cite": "110 Ill. 83",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        5371811
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      "opinion_index": 0,
      "case_paths": [
        "/ill/110/0083-01"
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  "last_updated": "2023-07-14T16:24:45.151974+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Samuel Cohen, Administrator, Appellee, v. City of Chicago, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Holdom\ndelivered the opinion of the court.\nThis is an action on the case for negligently causing the death of plaintiff\u2019s intestate, one James P. Hilton, brought against defendant and also the Chicago Junction Bailway Company. The cause proceeded to trial under the first and third counts of the declaration, each of which charged two causes of negligence as contributing to the accidental death of Hilton, the negligence charged against the defendant railway company being that it violated a city ordinance by-blowing the whistle of an engine which frightened the team Hilton was driving, causing them to bolt. The negligence charged against the defendant city was its permitting a large hole or rut to remain in Emerald avenue, in which the wheel of the wagon Hilton was driving dropped, throwing Hilton from the wagon, which ran over him and killed him.\nAt the close of plaintiff\u2019s evidence the court instructed a verdict in favor of the railway- company, and the cause was then, without any countervailing proof being offered by defendant, submitted to the jury, which rendered a verdict against the defendant city for $4,500, upon which a judgment was rendered, and the city brings the record here for' our review.\nTo the court\u2019s instruction to the jury to find a verdict for the railway company, counsel for the city interposed no objection.\nDefendant complains of the court\u2019s ruling on the instructions to the jury. We.have examined with care all of the instructions given and refused, and we are satisfied that the jury were sufficiently instructed upon the law of the case as it was submitted to them.\nThe court gave an instruction of its own motion, against which defendant raises strenuous objection, We are unable to discover any infirmity in this instruction, in fact we rather approve of it. In its essence it instructed the jury that they should take the law from the court.and not consider anything as law except as given to them in the written instructions, and decide the case accordingly. Lawyers in their arguments oftentimes tell the jury what they regard the law to be, and at times they misinform them. In such a condition, it is the exercise of wisdom on the part of the court to give an instruction like the one complained of, to counteract the effect of any misinformation concerning the law in which counsel may have indulged in argument.\nBecause the defendant put in no evidence, the jury were only to consider the case as made by the evidence of plaintiff. There was no occasion for the court to instruct the jury regarding the preponderance of the evidence, and certainly not to give the instruction refused, which told the jury that \u201cif the evidence was equally balanced, they must find for the defendant.\u201d The jury were instructed that their verdict must rest upon a preponderance of the evidence and that if they found the defendant city guilty of the negligence charged against it in the declaration, their finding must be based upon a preponderance of the evidence. But as all the evidence before them was that of the plaintiff, the use of the word \u201cpreponderance\u201d in this condition of the record was unnecessary.\nTwo acts of negligence were charged in the declaration\u2014the blowing of the whistle and the defect in the street-\u2014and defendant\u2019s proffered instruction that if the accident was approximately caused by the whistle on the engine frightening the horses, they should find the defendant not guilty, was bad, as ignoring the other element of proximate cause, viz., the defective condition of the street. The negligence of the defendant railway company was out of the case by the finding of the jury in its favor.\nThe only question for the jury was whether the defendant city was guilty of the negligence charged against it in either of the two counts of the declaration. If the jury found the city guilty of the negligence charged in either of the two remaining counts of the declaration, their liability was fixed. Even were there errors in the instruction, this court would not reverse because of such errors, where the evidence so clearly justified a verdict for the plaintiff as in the case at bar, nor in a case where there is no countervailing proof, unless it was clear that the instruction challenged misled the jury in a matter material to the issue. Young v. McConnell, 110 Ill. 83.\nAfter the railway company was out of the case no amendment was made to the declaration, and defendant contends that this is reversible error. If the defendant city was guilty of the negligence averred against it in the declaration, the jury were justified in their verdict, without regard to the liability of the other defendant. The most defendant can claim, in this condition of the record, is that there was a variance between the charge in the declaration that the railway company was guilty, with the other defendant, the city, of concurring negligence, and that the verdict was only against the latter. Defendant made no objection in the trial court on the ground of variance, neither did it there claim that the dismissal of the defendant railway company operated as an amendment to the declaration to that extent. The objection comes too late here. If the objection had been made in the trial court, plaintiff could have readily amended his declaration by striking out the negligence averred against the defendant railway company and by retaining only the averment of negligence against the defendant city. Frank Parmelee Go. v. Wheelock, 224 Ill. 194.\nThe city declined to meet with evidence the case made by plaintiff and allowed the case to go to the. jury on the facts as established by plaintiff\u2019s evidence, thereby admitting the truth of such undisputed evidence.\nThe trial was fair, there are no material errors in procedure affecting the city\u2019s rights, and the judgment of the Circuit Court is affirmed.\nAffirmed.",
        "type": "majority",
        "author": "Mr. Justice Holdom"
      }
    ],
    "attorneys": [
      "John W. Beckwith and N. L. Piotrowski, for appellant; David R. Levy, of counsel.",
      "Elmer & Cohen, for appellee."
    ],
    "corrections": "",
    "head_matter": "Samuel Cohen, Administrator, Appellee, v. City of Chicago, Appellant.\nGen. No. 21,418.\n1. Appeal and error, \u00a7 219 \u2014when defendant cannot complain of peremptory instruction in favor of codefendant. A defendant cannot complain of a peremptory instruction in favor of a codefendant where he did not object to the instruction when given.\n2. Instructions, \u00a7 20 \u2014when instruction that fury should take law from court proper. An instruction that the jury shall take the law from the court and not from counsel is proper in order to counteract the effect of misinformation concerning the law indulged in by counsel in argument.\n3. Instructions, \u00a7 88 \u2014when instruction as to preponderance of evidence improper. Where defendant puts in no evidence, an instruction as to the preponderance of the evidence is improper, as the jury in such case consider the case on the evidence of plaintiff.\n4. Instructions, \u00a7 85 \u2014when instruction on evidence improper. Where the defendant puts in no evidence, an instruction that \u201cif the evidence is equally balanced, they must find for, defendant\u201d is properly refused.\n5. Municipal corporations, \u00a7 1100 \u2014when instruction on proximate cause erroneous. In an action against a city and a railroad company to recover for the death of plaintiff\u2019s intestate, where it was alleged that a horse which deceased was driving at the time of the accident was frightened by the blowing of defendant railroad company\u2019s locomotive whistle and bolted, causing the wheel of the wmgon in which deceased was riding to fall into a large hole or rut in defendant city\u2019s public street, throwing plaintiff out and causing his death, an instruction offered by defendant city that the jury should find such defendant not guilty if it appeared that the accident was proximately caused by the blowing of the whistle is properly refused, being bad as ignoring the other element of proximate cause, the defective condition of the street.\n6. Trial, \u00a7 207 \u2014what is effect of direction of verdict to find one defendant guilty. In an action against a city and a railroad company to recover for the death of plaintiff\u2019s intestate alleged to have been caused by defendants\u2019 negligence, a peremptory instruction to find one defendant not guilty leaves only the question of the negligence of the codefendant, and a verdict finding such codefendant guilty fixes its liability independently of the negligence of the other defendant.\n7. Municipal corporations, \u00a7 1098 \u2014when evidence sufficient .to sustain verdict for injuries due to defective street. In an action against a city and a railroad company to recover for the death of plaintiff\u2019s intestate, where it is alleged that the horse which deceased was driving at the time 'of the accident was frightened by the blowing of defendant railroad company\u2019s locomotive whistle and bolted, causing the wheel of the wagon in which deceased was riding to fall into a large hole or rut in defendant city\u2019s public street, throwing plaintiff out and causing his death, evidence held sufficient to justify a verdict for plaintiff.\n8. Appeal and error, \u00a7 1523 \u2014when case not reversed for errors in instructions. Where the evidence in an action clearly justifies a verdict for plaintiff, or where defendant offers no countervailing evidence, such verdict will not be reversed for errors in instructions unless it is clear that the jury were misled by. such instructions in a matter material to the issue.\n9. Torts, \u00a7 32 \u2014when verdict against one tort feasor justified without regard to negligence of other. In an action where the declaration charges two defendants with separate acts of negligence contributing to cause the injury sought to be recovered for, a verdict against one defendant is justified without regard to the negligence of the other.\n10. Appeal and error, \u00a7 438 \u2014when objection as to variance too late. In an action where the declaration charges two defendants with separate acts of negligence contributing to cause the injury sought to be recovered for, and where a peremptory instruction in favor of one defendant is given, plaintiff going to trial against the codefendant without amending, the objection of variance made for the first time, on appeal comes too late, since if the objection had been seasonably made, plaintiff could have amended by striking the negligence averred against the other defendant, and retaining only the averment of negligence against the defendant found guilty.\n11. Evidence, \u00a7 154 \u2014when failure to offer evidence admission of facts. Where a defendant offers no evidence to meet the case fnade by plaintiff\u2019s evidence, and allows the case to go to the jury on the facts so established, such defendant thereby admits the truth of such facts.\nAppeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.\nHeard in this court at the March term, 1915.\nAffirmed.\nOpinion filed January 3, 1916.\nRehearing denied January 17, 1916.\nCertiorari denied by Supreme Court (making opinion final).\nJohn W. Beckwith and N. L. Piotrowski, for appellant; David R. Levy, of counsel.\nElmer & Cohen, for appellee.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number."
  },
  "file_name": "0377-01",
  "first_page_order": 399,
  "last_page_order": 404
}