{
  "id": 5224790,
  "name": "East St. Louis Electric St. Ry. Co. v. John Burns, Adm'r",
  "name_abbreviation": "East St. Louis Electric St. Ry. Co. v. Burns",
  "decision_date": "1898-08-31",
  "docket_number": "",
  "first_page": "529",
  "last_page": "533",
  "citations": [
    {
      "type": "official",
      "cite": "77 Ill. App. 529"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "166 Ill. 375",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        5496873
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/166/0375-01"
      ]
    }
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  "last_updated": "2023-07-14T16:36:43.320990+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "East St. Louis Electric St. Ry. Co. v. John Burns, Adm\u2019r."
    ],
    "opinions": [
      {
        "text": "Hr. Justice Bigelow\ndelivered the opinion of the court.\nAppellant has assigned a number of errors, but all of them except the second are really embraced in the first, which questions the ruling of the court in not entering judgment for defendant, by virtue of plaintiff\u2019s confession of defendant\u2019s motion for a new trial.\nThe contention of appellant\u2019s counsel seems to be that since the causes of appellant\u2019s motion for a new trial were specially stated, and the motion was confessed, and the whole proceeding made a part of the record by a bill of exceptions, an estoppel of law was thus created against appellee.\nThe point is a novel one, and the only authority to which we are referred in support of it is Metropolitan West Side Elevated Railroad Co. v. Minnie White et al., 166 Ill. 375. We are unable to see wherein that case supports the contention insisted upon. By confessing defendant\u2019s motion, plaintiff simply consented to defendant\u2019s request for a new trial, and the order granting the motion was really not a judicial determination of anything.\nThe second error assigned questions the ruling of the court in denying defendant\u2019s motion for a new trial. One of the points made in the motion was the refusal of the court to instruct the jury to find for the defendant.\nThis instruction was based upon the assumption that the boy was guilty of such contributory negligence as precluded a right to recover. The question whether the boy was competent to determine for himself what, if any, acts or omissions on his part were negligence, was one which the court could not determine; but it was the especial province of the jury to determine it, from all the evidence before them, taking into consideration their own experience as to what could reasonably be expected from a boy of his age.\nThe court did not err in refusing the instruction.\nPlaintiff was allowed to prove by one or more witnesses that no bell was rung on the car, but afterward other witnesses of plaintiff were not allowed to testify, because of defendant\u2019s objection. We do not regard the question as to whether a bell was rung of any particular importance. Plaintiff claimed nothing, either in his declaration or instructions, because of it. Whatever took place at the car when the accident occurred, was a part of the res gestee and proper to be admitted in evidence.\nThe court properly refused defendant\u2019s instructions telling the jury that there is no law in this State in regard to the speed electric cars may be run, or that requires a bell or gong to be sounded at street crossings. Had the instructions been confined to statutes or ordinances, they might have been proper; but as offered, they were misleading; since the jury might have inferred that the law permitted such cars to be run at any speed in a populous city and without any notice of their approach to street crossings.\nIt is urged by appellant that appellee\u2019s counsel, in arguing the case to the jury, called certain of the jurors by name and personally addressed his remarks to them, and that such act was error. Who or how many of the jurors were so addressed, or what counsel said to them, does not appear, and we have no means of telling whether the remarks were proper and such as should have been allowed during the trial or otherwise, but the presumption is they were.\nCounsel should at all times be respectful to court and jury, for upon the good conduct of counsel depends in a large degree a proper administration of justice.\nIt is finally insisted that the damages are excessive. It must be conceded that they are larger than the usual verdicts in this class of cases, and it does not seem to us that the jury could have fully considered and been guided by the law, as given to them by the court, and which it was their duty to follow.\nHere are two verdicts of two juries, on substantially the same state of facts. The first is for $487.50, and the last is for $2,783.33. We are at a loss to account for the difference, unless it can be attributed to passion. Nothing can be recovered for pain and suffering by deceased or for loss of affection and society by surviving relatives.\nThe evidence as to amount of damages is so meager and the difference in the amounts as found by the respective juries is so great as to evidence want of proper consideration of that question; under the evidence contained in the record, we are not satisfied with the amount of damages as finally fixed by the judgment of the court, and we are of the opinion that the case ought to be submitted to another jury, and that the court erred in overruling defendant\u2019s motion for a new trial; for this error the judgment is reversed and the cause remanded.",
        "type": "majority",
        "author": "Hr. Justice Bigelow"
      }
    ],
    "attorneys": [
      "Charles W. Thomas, attorney for appellant.",
      "M. Hillard and F. C. Smith, attorneys for appellee."
    ],
    "corrections": "",
    "head_matter": "East St. Louis Electric St. Ry. Co. v. John Burns, Adm\u2019r.\n1. Estoppel\u2014 Confessing a Motion for a New Trial.\u2014A plaintiff who confesses a defendant\u2019s motion for a new trial, does not confess that he has no cause of action by doing so. He simply consents to the defendant\u2019s request and the order granting the motion is not a judicial determination of anything.\n2. Infancy\u2014Age of Competency.\u2014The question as to whether a boy between eight and nine years of age is competent to determine for himself what, if any, acts or omissions on his part are negligence, is one which the court can not determine; it is the province of the jury to determine it, from all the evidence before them, taking into consideration their own experience as to what can reasonably be expected from a boy of that age.\n3. Res GrESTJE\u2014As to Accidents.\u2014Whatever took place at the car when the accident occurred is a part of the res gestee and proper to be admitted in evidence.\n4. Attorneys\u2014Conduct in Court.\u2014Counsel should at all times be respectful to the court and jury, for upon the good conduct of counsel depends, in a large degree, a proper administration of justice.\nTrespass on the Case, for personal injuries. Trial in the City Court of East St. Louis; the Hon. Benjamin H. Canby, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.\nHeard in this court at the February term, 1898.\nReversed and remanded.\nOpinion filed August 31, 1898.\nStatement.\nAppellant operates an electric street railroad along Converse avenue in East St. Louis. The street runs nearly east and west and is crossed at right angles by Fourth, Fifth and Sixth streets. At the corner of the avenue and Fourth street is a school house, in the rear of which is a yard, used by the scholars attending school as a playground, and beyond the gate is an alley running from. Fourth to Fifth street.\nDeceased, a boy between eight and nine years of age, attended the school, and at recess in the afternoon of a day in September, 1896, he and a number of other boys began the play of \u201c catch,\u201d or \u201c tag,\u201d and deceased, being ahead, ran, with the other boys after him, out of the yard and up the alley to Fifth street, and from Fifth street turned into Converse avenue, and immediately on turning into the avenue he was struck by a motor car coming toward him and killed.\nThe motorman testified he saw the boy when he was thirty-five or forty feet distant from the car running toward the car, which was running between three and four miles an hour.\n. Deceased left a father, mother, two brothers and a sister surviving him, and this action is brought to recover damages to their means of support.\nThe case has been tried twice. The verdict on the first trial was for $487.50. On the return of the first verdict, the defendant filed a motion for a new trial, for reasons stated as follows: First, the damages awarded by the jury are excessive. Second, the court refused to instruct the jury at the close of plaintiff\u2019s testimony to find defendant not guilty. Third, the court refused to instruct the jury, at the close of- all the testimony, to find defendant not guilty.\u201d\nThis motion the plaintiff confessed. Before the second trial, defendant entered a motion for judgment for defendant, on the ground that plaintiff, by confessing the motion for a new trial, had confessed he had no cause of action, but the court denied the motion. The verdict at the last trial was for $2,783.33, but the court required the plaintiff to remit $783.33, and entered judgment for $2,000.\nCharles W. Thomas, attorney for appellant.\nM. Hillard and F. C. Smith, attorneys for appellee."
  },
  "file_name": "0529-01",
  "first_page_order": 531,
  "last_page_order": 535
}