#### Chicago City Ry. Co. v. Mary A. Olis, Adm., etc.

1. Instructions—As to Corrupt Motives of Witnesses.—It is the corrupt motives of a witness in giving of false testimony, knowing it to be false, which authorizes a court to instruct a jury to disregard his testimony.

2. Special Interrogatories—Calling for Evidentiary Facts.—A question which is entitled to be submitted to the jury for their special finding is one which, if found, must be controlling. A fact which merely tends to prove a matter in issue, without actually proving it, can not be said to be, in any legal sense, inconsistent with the general verdict, whatever that fact may be.

Trespass on the Case,—Death from negligent act. Appeal from the Circuit Court of Cook County; the Hon. John C. Carver, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.

Affirmed.

Opinion filed March 29, 1901.

Wm. J. Hynes and. W. J. Ferry, attorneys for appellant; Mason B. Starring, of counsel.

Matz, Fisher & Boyd bn, attorneys for appellee.

Mr. Presiding Justice Shepard

delivered the opinion of the court.

The appellee brought suit, as administratrix of the estate of her deceased husband, John E. Olis, to recover damages for the death of said intestate, because of the alleged negligent acts of the appellant in the operation of one of its cable trains on State strpet, at or near Fifty-eighth street, in Chicago. - She recovered a judgment of $5,000, and this appeal has followed.

Out of the twenty-nine assigned errors, appellant’s counsel have argued but four. We will ignore the others, as they have done. Two of the errors considered by appellant relate to the instructions; one to the refusal by the court to submit to the jury a special interrogatory that was asked, and the other attacks the sufficiency of the evidence to support the verdict. The complaints that are made and urged, with reference to the instructions, will be first discussed. It is urged that the court erred in modifying the following instruction:

> *324“ If the jury believe from the evidence that any witness has willfully and knowingly sworn falsely to any material point in the case they have the right to reject the entire testimony of such witness or witnesses in matters where their testimony is not corroborated by other evidence Avhich they believe to be credible, or facts and circumstances appearing in evidence.”

The modification complained of consists in the insertion of the words “ intentionally, corruptly,” betAveen the words “ has ” and “ willfully,” so that, as given, the instruction reads, that if “ any witness has intentionally, corruptly, willfully, and knowingly sworn falsely,” etc. It is substantially conceded that £‘ intentionally ” is synonymous with “ willfully,” and such reiteration ought not to make the instruction vicious. But, as to the word ££ corruptly,” it is insisted that its use was equivalent to saying to the jury that, although they should believe from the evidence that any witness had intentionally, willfully and knowingly sworn falsely to any material point in the case, yet they had no right to reject his testimony, Avhen not corroborated, unless they should also believe from the evidence that such1 witness had been bribed, or was to receive some - sort of gain or reward.

We are unable to agree with counsel in such respect. In such connection, “ corruptly ” refers to the motive of the witness, rather than to the means by which his testimony is obtained. So, in Overtoom v. Chicago & Eastern Illinois Railroad Company, 181 Ill. 323, it is said :

> “ It is the corrupt motive, or the giving of false- testimony, knowing it to be false, that authorizes a jury to disregard the testimony of a witness.”

Again, in 1 Bouvier’s Law Dictionary, it is said:

> “ An act may be corruptly done, though the advantage to be derived from it be not offered by another.”

And that learned author defines ££ corruption ” as being something against law, and illustrates its application by the case of a contract for usurious interest, wherein it was “ corruptly agreed,”' etc.

It would seem that a witness who should testify “ will*325fully and for the purpose of concealing the truth ” would bring himself within the meaning of£l corruptly ” testifying. Crabtree v. Hagenbaugh, 25 Ill. 233 (214 and 219, Freeman & Gross’ Ed.). In Yundt v. Hartrunft, 41 Ill. 9, it is said: “ It is true, that when a witness has knowingly and corruptly testified falsely to a tpaterial fact, the jury are authorized to disregard all of his evidence unless it is sustained by corroborating evidence,” and the court holds that an instruction given in that case, should have been so modified as to have announced that rule. So, also, in Hirschman v. People, 101 Ill. 568, and Rider v. People, 110 Ill. 11, instructions using the language “ willfully and corruptly testified falsely,” etc., were approved. We think there was no error in the instruction, in the respect complained of.

But, if by any principle of reasoning the modification might be criticised, we do not see why appellant did not get all he was entitled to, by the giving of another of his instructions covering substantially the same question, as follows:

> “ The jury are instructed that it is a principle of law that if you believe from the evidence that any witness has willfully and knowingly sworn falsely to any material element in the case, or that any witness has willfully and knowingly exaggerated any material fact or circumstance for the purpose of deceiving, misleading or imposing upon the jury, then the jury have a right to reject the entire testimony of such witness, unless corroborated by other evidence which you believe, or by facts and circumstances appearing in the case.”

It is next urged that the court erred in refusing to give the following instruction:

> “ The jury are instructed that in considering the evidence of the witnesses in this ease, and determining what weight shall be attached to the same, they have the right to take into consideration whatever interest, if any, appears from the evidence such witness or witnesses may have in the result of the suit.”

There was no evidence, and no claim seems to have been made here or elsewhere, that any witness in the case besides the plaintiff (appellee), had any interest in the result *326of the litigation. Therefore, when the appellant asked and was allowed another instruction to the jury, as follows, it obtained all it was entitled to:

> “ The jury are instructed that while the law permits a plaintiff in a case to testify in her own behalf, nevertheless the jury have a right in weighing her evidence and determining how much evidence is to be given to it, to take into consideration that she is the plaintiff, and her interest in the result of the suit.” Chicago City Railway Company v. Mager, 185 Ill. 336.

The special interrogatory that the court refused to give, and which is made the subject of complaint, was as follows:

> “ 1st. Was the gripman on the train in question ringing his gong as he approached near to the so-called Fifty-eighth street on the occasion in question.”

An answer to this question, in the way that appellant desired when he propounded it (Fortune v. Jones, 30 Ill. App. 116), would not have established appellant’s lack of negligence, or any other ultimate fact in the case. It would have been to find but a single evidentiary fact, that would not have- been inconsistent with the general verdict that was given for the appellee. A question of fact, which is entitled to be submitted to the jury for their special finding, must be one which, if found, must be controlling.

> “ A fact which merely tends to prove a fact in issue, without. actually proving it, can not be said to be, in any legal sense, inconsistent with a general verdict, whatever that fact may be.” Chicago & Northwestern Railway Co. v. Dunleavy, 129 Ill. 132.

> “ The rule is, that the special interrogatories to be submitted to a jury, under the statute, must relate to the ultimate facts, and not to mere evidentiary facts that tend, more or less, to establish the ultimate facts upon which the rights of the parties depend.” Lake Erie and Western R. R. Co. v. Morain, 140 Ill. 117. See also, Terre Haute and Indianapolis R. R. Co. v. Eggman, 159 Ill. 550; Chicago and Alton R. R. Co. v. Winters, 175 Ill. 293.

It was not error to refuse to submit the interrogatory to the jury. But, as if to relieve the jury from the question as to whether the bell or gong were properly rung, the court, on its own motion, instructed them as follows:

> *327“ The evidence shows in this case that the car in question was properly constructed and in good order, and that there is no proof in the case of any failure of the gripman to ring the bell in a reasonable manner.”

The remaining question argued, that the verdict was not supported by the evidence, relates wholly to questions that, under this record, were within the province of the jury to settle. The car that ran into and killed appellee’s intestate was running north on the east track of appellant’s double-track road on State street. The deceased was driving his team eastward across the tracks. He was driving a double team attached to a long geared dirt wagon, and when struck by the on-coming train, moving at a rapid rate of speed, had so nearly succeeded in crossing, that the hind wheel only was collided with. At the time the deceased turned his team to cross the tracks he was in full view of the gripman, and so was the gripman in full view of him, assuming that they both exercised their visual faculties. And they were at such a distance apart as that either one could easily have avoided the accident, by paying reasonable attention to the reciprocal obligations that each owed to the other, on a public street. Neither one, however, was required to exercise more than a reasonable regard for the rights of the other, and what that reasonable regard was, was a question for the jury, under the facts and circumstances of the case.

All that was required by either, under the circumstances, was to exercise his right so as not to.unduly interfere with the right of the other. North Chicago Street R. R. Co. v. Zeiger, 182 Ill. 9. Was that done? The evidence was very conflicting, and it is difficult to say with certainty where the right and justice of the case lies, although we agree with the jury that the preponderance of the evidence is that the gripman was negligent in his conduct.

We are in greater doubt of the deceased being in proper care for his own safety. As to that, however, the jury answered, “No,” to a special interrogatory propounded to them, as follows: “Could the deceased by the exercise of reasonable care have avoided the collision and accident in *328question;” and we can not say the answer is not fairly in accordance with the weight of the evidence. “ If one reasonably appears to have time to do so, although he may observe the train approaching, he may attempt to cross a railroad track without waiting.” Baltimore & Ohio S. W. Ry. Co. v. Keck, 185 Ill. 400. And that was held in the case of a steam railway.

It would be useless to attempt, by a review of the evidence in detail, to deny the correctness of the verdict. It was a clear case for the jury to decide and they having done so, and the judge presiding at the- trial, with -the witnesses before him, having sanctioned the verdict, we affirmed the judgment. Affirmed.