{ "id": 5436068, "name": "Edith Franz, Appellee, v. St. Louis, Springfield & Peoria Railroad ,Appellant", "name_abbreviation": "Franz v. St. Louis, Springfield & Peoria Railroad", "decision_date": "1920-10-27", "docket_number": "", "first_page": "558", "last_page": "562", "citations": [ { "type": "official", "cite": "219 Ill. App. 558" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "184 Ill. 501", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3222701 ], "opinion_index": 0, "case_paths": [ "/ill/184/0501-01" ] }, { "cite": "135 Ill. 511", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2985794 ], "opinion_index": 0, "case_paths": [ "/ill/135/0511-01" ] }, { "cite": "211 Ill. 589", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3307777 ], "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/ill/211/0589-01" ] }, { "cite": "228 Ill. 346", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5627801 ], "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/ill/228/0346-01" ] }, { "cite": "242 Ill. 409", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5653655 ], "pin_cites": [ { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/ill/242/0409-01" ] }, { "cite": "133 Ill. 248", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5428576 ], "pin_cites": [ { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/ill/133/0248-01" ] }, { "cite": "203 Ill. 608", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3273376 ], "pin_cites": [ { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/ill/203/0608-01" ] }, { "cite": "242 Ill. 544", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5654296 ], "opinion_index": 0, "case_paths": [ "/ill/242/0544-01" ] }, { "cite": "259 Ill. 476", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4729480 ], "pin_cites": [ { "page": "480-481" } ], "opinion_index": 0, "case_paths": [ "/ill/259/0476-01" ] }, { "cite": "133 Ill. App. 290", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2476060 ], "pin_cites": [ { "page": "294" } ], "opinion_index": 0, "case_paths": [ "/ill-app/133/0290-01" ] }, { "cite": "234 Ill. 578", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5640433 ], "pin_cites": [ { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/ill/234/0578-01" ] } ], "analysis": { "cardinality": 475, "char_count": 8785, "ocr_confidence": 0.536, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.34666133044822306 }, "sha256": "b263c35b6fc27dd438a2dfcc69efb994082f972361b23da4b45760db8c967210", "simhash": "1:dd9d711d1a2554d1", "word_count": 1508 }, "last_updated": "2023-07-14T20:18:36.383317+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Edith Franz, Appellee, v. St. Louis, Springfield & Peoria Railroad ,Appellant." ], "opinions": [ { "text": "Mr. Presiding Justice Waggoner\ndelivered the opinion of the court.\nAppellee brought this action for personal injuries, in the circuit court of Sangamon county, against appellant and recovered a judgment for $3,300.\nThe injuries were\" the result of a collision between an automobile being driven by appellee\u2019s husband, in which she was riding, and an interurban train of appellant at Virden, Illinois.\nOn the trial of the case the court erroneously permitted a physician to testify that he removed appellee\u2019s breast without proof that there was a necessity for so doing due to an injury received at the time of the accident. The physician testified that the breast was diseased but that the causing factor was problematical; that he did not know whether it was due to trauma or not and that he could not swear it was due to the injury.\nThe court instructed the jury that if they found for appellee, then in determining the amount of damages she was entitled to recover, they should take into consideration, among other elements recited, such sum or sums of money as she had paid or become liable for, if any, for nursing and medical services because of said injuries.\nIn order to recover for nursing or medical services appellee must prove that such services were made necessary because of the injuries inflicted by appellant; that she paid or became liable to \"pay specific amounts, and that such amounts were the usual and reasonable charges for services of that nature. (Schmitt v. Kurrus, 234 Ill. 578, 581; Amann v. Chicago Consol. Traction Co., 243. Ill. 263, 266.) Her attending physician testified that he was paid $275 for three operations (one of which would be the removal of the breast), but does not say by whom the payment was made. The husband of appellee testified that he paid between $1,100 and $1,200 in and about curing his wife but there is no evidence showing that she paid or became liable to pay anything for nursing or medical services. This instruction was evidently given on the mistaken basis that appellee could recover what her husband had expended. Such is not the law, and the instruction should not have been given. City of Centralia v. Ayres, 133 Ill. App. 290, 294.\nThe third instruction, given at the instance of appellee, does not require the exercise of ordinary care at and immediately before the accident, but \u201cat the time and place named in the declaration,\u201d which would be while appellee was \u201criding in said automobile across said railroad at the said crossing on the public street.\u201d\nIn Bale v. Chicago Junction Ry. Co., 259 Ill. 476, 480-481, it is said: \u2018 \u2018 The first count of the declaration charged that the defendant propelled certain of its rolling stock upon and over the person of the deceased, \u2018who was then and there present upon the said public highway of Wallace street and in the exercise of reasonable care for his own safety. \u2019 The averment of reasonable care in this count was limited to the time when the deceased was in the place where he was struck by the train, while the contention of the plaintiff in error was that he was guilty of negligence in placing himself in that position when he saw or by the exercise of reasonable' care could have seen the approaching train and avoided placing himself in a position of danger. The instruction did not cover the care of the deceased in going into the dangerous place, but only his care after he had gone there, and was therefore erroneous. Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544. \u2019 \u2019 In North Chicago St. R. Co. v. Cossar, 203 Ill. 608, 613, it is said: \u201cIn personal injury cases it has been repeatedly\"\" held by this court that it is improper to give an instruction which limits the question of due care to the conduct of the plaintiff at the time of the injury, regardless of his conduct in placing himself in a place of danger.\u201d See also Chicago, M. & St. P. Ry. Co. v. Halsey, 133 Ill. 248, 254.\nThis instruction should not have been given even if the accident had occurred at the place designated in the declaration, but there is absolutely no evidence tending to show a collision while the automobile was crossing the track. The automobile did not reach the track, but before doing so wa,s turned south, the direction from which the train was coming, and the first step of the second car in the train and the radiator and left front wheel of the automobile came in contact, either by the automobile running into the train, as contended by appellant, or by the train striking the automobile, as insisted by appellee.\nThe court, on behalf of appellee, gave an instruction upon .the preponderance of the evidence, in which the jury were told that the preponderance of the evidence \u201cis not necessarily governed by the greater number of witnesses, but you should take into consideration the means of knowledge of such witnesses, their conduct and demeanor in testifying, their interest or lack of interest, if any, in the suit, the probability or improbability of their statements, and the facts and circumstances shown on the trial which might go to determine the weight of their testimony.\u201d\nAppellee and one witness testified that the automobile had stopped and that a step of one of the interurban cars hit it. Appellant called five witnesses, who, in addition to three called by appellee, testified that the automobile hit the interurban car.\nOne of the disputed points in the case was whether or not the servants of appellant gave any warning of the approach of its train to the place of the accident. Appellant called more witnesses who testified that such a warning was given than did appellee to show the contrary.\nThe burden of proof was on appellee to establish the fact that no warning was given, and the number of witnesses testifying in reference to it was an important factor, on the part of appellant, to be taken into consideration in determining whether or not appellee had done so. This instruction, which eliminates the question of the number of witnesses by words used in the first part of it and then omits it from an- enumeration of the things the jury were told they should take into consideration, ought not to have been given. Lyons v. Joseph T. Ryerson & Son, 242 Ill. 409, 417, and Chicago Union Traction Co. v. Hampe, 228 Ill. 346, 350.\nAppellant cannot raise, for the first time in this court, a question of variance between th\u00e9 allegations of the declaration and the evidence offered in support of it. Such objection should be made a,t the time the evidence is offered otherwise it is waived. Chicago City Ry. Co. v. McClain, 211 Ill. 589, 595; Lake Shore & M. S. Ry. Co. v. Ward, 135 Ill. 511, and Elinois Steel Co. v. Novok, 184 Ill. 501.\nFor the errors above indicated the judgment of the trial court is reversed and this cause remanded.\nReversed and remcmded.", "type": "majority", "author": "Mr. Presiding Justice Waggoner" } ], "attorneys": [ "Graham & Graham, for appellant; George W. Burton, of counsel.", "William E. Fain, for appellee." ], "corrections": "", "head_matter": "Edith Franz, Appellee, v. St. Louis, Springfield & Peoria Railroad ,Appellant.\n1. Damages, \u00a7 32 \u2014when instruction is erroneous. An instruction evidently based on the mistaken theory that plaintiff could recover what her husband had expended in and about curing her was erroneous.\n2. Railroads, \u00a7 780*\u2014when instruction as to contributory negligence is erroneous. An instruction requiring the exercise of due care \u201cat'the time and place named in the declaration,\u201d which would be while appellee was \u201criding in said automobile across said railroad at the said crossing on the public street,\u201d did not require the exercise of ordin'ary care at and immediately before the accident, where there was no evidence tending to show a collision while the automobile was crossing the track.\n3. Instructions, \u00a7 89*\u2014when instruction as to preponderance of evidence is erroneous. In a collision case in which more witnesses testified for defendant than for plaintiff on disputed points, and the number of witnesses therefore became an important factor, an instruction given for plaintiff on the question of the preponderance of the evidence was improper, which eliminated the question of the number of the witnesses hy words used in the first part and then omitted it from an enumeration of the things the jury were told they should take into consideration.\n4. Appeal and error, \u00a7 438*\u2014when objection must be made because of variance. The question of variance between the allegations of the declaration and the evidence offered in support of it cannot be raised for the first time in the Appellate Court.\nAppeal from the Circuit Court of Sangamon county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1920.\nReversed and remanded.\nOpinion filed October 27, 1920.\nGraham & Graham, for appellant; George W. Burton, of counsel.\nWilliam E. Fain, for appellee.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same tonic and section number." }, "file_name": "0558-01", "first_page_order": 584, "last_page_order": 588 }