{ "id": 5292359, "name": "Chicago General Railway Co. v. Henry Kriz, for use, etc.", "name_abbreviation": "Chicago General Railway Co. v. Kriz", "decision_date": "1901-03-25", "docket_number": "", "first_page": "277", "last_page": "281", "citations": [ { "type": "official", "cite": "94 Ill. App. 277" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "93 Ill. App. 411", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5289243 ], "opinion_index": 0, "case_paths": [ "/ill-app/93/0411-01" ] }, { "cite": "181 Ill. 323", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5549623 ], "opinion_index": 0, "case_paths": [ "/ill/181/0323-01" ] }, { "cite": "174 Ill. 495", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5536883 ], "opinion_index": 0, "case_paths": [ "/ill/174/0495-01" ] }, { "cite": "171 Ill. 313", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3179082 ], "opinion_index": 0, "case_paths": [ "/ill/171/0313-01" ] }, { "cite": "157 Ill. 274", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3139918 ], "opinion_index": 0, "case_paths": [ "/ill/157/0274-01" ] }, { "cite": "113 Ill. 658", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2866814 ], "opinion_index": 0, "case_paths": [ "/ill/113/0658-01" ] }, { "cite": "183 Ill. 281", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 } ], "analysis": { "cardinality": 452, "char_count": 8866, "ocr_confidence": 0.553, "pagerank": { "raw": 1.3608438240779086e-07, "percentile": 0.6357389948217058 }, "sha256": "83a60728d0d0b4f0d50fe220858fe32e730d9aea4b1e31af1fb3502abc68e957", "simhash": "1:bf928325960eb4c0", "word_count": 1567 }, "last_updated": "2023-07-14T20:05:08.743041+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Chicago General Railway Co. v. Henry Kriz, for use, etc." ], "opinions": [ { "text": "Mr. Justice Sears\ndelivered the opinion of the court.\nThe first contention presented by counsel for plaintiff in error is, that because of the fact that the suit is brought for the use of another, the judgment must be reversed. In this behalf it is argued that the decision in West Chicago St. Ry. Co. v. Lundahl, 183 Ill. 281, does not control, because there the suit was for personal injuries to the plaintiff only, and the right of action could not be assigned. Because in this case the suit is partly for damages to personal property, it is urged that to that extent the right of action was assignable, and hence, this being a recovery partly upon cause of action assignable and assigned, and partly for cause of action not assignable, the recovery must fail. We are of opinion that this contention of the learned counsel for plaintiff in error can not be sustained. If the right of recovery is in part not assignable, then the words \u201c for the use of B. J. Kriz,\u201d wherever they occur in process and pleading, must be treated as surplusage. The reasoning of the Lundahl case, would, we think, equally well apply here. If the plaintiff attempted to assign that which Avas not assignable, the effect of his action, so far as the sn.it and the recovery are concerned, is not aided by the fact that in the action are also embraced matters Avhich, if they stood alone, Avould be capable of transfer by assignment.\nIn the Lundahl case, Mr. Justice Wilkin, speaking for the court, said: \u201c Courts of law can only recognize the nominal plaintiff, although as a matter of convenience they Avill declare and protect the trust.\u201d And, \u201c The Avords \u2018 for the use of Charles Hamill \u2019 are in no Avay for the benefit of the defendant, neither is it in any Avay interested in the declaration of use.\u201d This statement of the law is applicable and controlling in this case. The judgment here runs to the nominal plaintiff only, and not for the use of any other person.\nIt is also complained that the trial court erred in admitting evidence over objection, to show that the plaintiff below, defendant in error here, suffered from rheumatism as a result of the injury. The ground of objection is that the narr. does not allege specifically that the injury caused rheumatism, nor that the plaintiff Avas permanently injured. We think the court ruled correctly in admitting the evidence. The allegation that by reason of the injury plaintiff became sick, sore, lame and disabled, and was prevented from attending to his affairs and business, is sufficient to warrant the admission of evidence in question. City v. Sheehan, 113 Ill. 658.\nThe same ruling and authority therefor applies to the admission of evidence to show that the memory of defendant in error was impaired.\nIt is also complained that the court erred in admission of the following evidence: A witness was asked, \u201c Did you hear any warning?\u201d To which she answered \u201c Ho.\u201d The allegation of negligence in the narr. was a general charge of negligent and improper managing and driving of the motor-car against the plaintiff\u2019s wagon. There was no specific allegation of failure to give warning by ringing a bell or otherwise. We are of opinion, however, that under\u00bb the general allegation of negligence the evidence was properly admitted. C. & W. I. R. R. Co. v. Jennings, 157 Ill. 274.\nIt was at any rate a part of the res gestee, and even if a failure to ring the bell could not be availed of as a ground of liability, yet it could be shown as a part of the res, as bearing upon the exercise of care by plaintiff in remaining upon the track while a car was approaching from behind. If the evidence was competent for any purpose, its admission ivas proper and its effect could have been limited by appropriate instructions.\nThere was no error in admitting the opinions of witnesses as to speed. I. C. R. R. Co. v. Ashline, 171 Ill. 313; C. B. & Q. R. R. Co. v. Gunderson, 174 Ill. 495; Overtoom v. C. & E. I. R. R. Co., 181 Ill. 323.\nThe answer of witness that the car was going at a \u201c real good speed \u201d and \u201c pretty swiftly,\u201d if of no great value as an accurate measurement of the actual rate of speed, could at least have worked no apparent prejudice to plaintiff in error.\nThis court has held that the qualification \u201c terrible,\u201d by a wdtness in giving his opinion as to rate of speed, was improper, and likely to prejudice the defendant railway company as conveying to the ju-ry the disapproval by the witness of the rate of speed. C. C. R. R. Co. v. Wall, 93 Ill. App. 411.\nBut the same reasoning does not here apply, for the answer here imports no such disapproval by the witness.\nThe court did not err in refusing the third, fourth and fifth instructions tendered by counsel for plaintiff in error. The third is inaccurate in statement of superior right of plaintiff in error, and calculated to mislead. The fourth is abstract in form and is sufficiently covered by the first instruction given at request of plaintiff in error. The fifth is bad as ignoring any negligence of plaintiff in error which might have operated as the proximate cause of the injury, in'spite of the error in judgment as to aprobable escape from such negligence.\nFinally it is urged as a ground of reversal that the names of certain of the jurors given in the bill of exceptions as returning the verdict, vary from the names of the jurors impaneled and sworn to try the issues. This objection was not presented in the court below when the verdict was returned and when the discrepancy could have been cured.\nIt can not be now raised for the first time. The judgment is affirmed.", "type": "majority", "author": "Mr. Justice Sears" } ], "attorneys": [ "Depress, Brace & Bitter, attorneys for plaintiff in error.", "Jones & Lusk, attorneys for defendant in error." ], "corrections": "", "head_matter": "Chicago General Railway Co. v. Henry Kriz, for use, etc.\n1. Practice\u2014Assignability of Causes of Action.\u2014When a plaintiff attempts to assign a cause of action which is not assignable, the effect of his action, so far as the suit and recovery are concerned, is not aided by the fact that in the action are also embraced matters which, if standing alone, would be capable of transfer by assignment.\n2. Same\u2014Actions for Use of Another.\u2014Courts of law can only recognize the nominal plaintiff, although, as a matter of convenience, they will declare and protect the trust. The words \u201c for the use of, etc.,\u201d are in no way for the benefit of the defendant, neither is he in any way interested in the declaration of use.\n3. Same\u2014Pleadings and Proofs\u2014Admissibility of Evidence.\u2014A declaration alleging that \u201c by reason of the injury plaintiff became sick, sore, lame and disabled,\u201d is sufficient to warrant the admission of evidence to show that the plaintiff suffered from rheumatism as a result of his injury, and that his hearing was impaired.\n4. Same\u2014 What is Admissible Under a General Allegation of Neg ligenee.\u2014Under a general allegation of negligence, evidence of a failure to give warning by ringing a bell or otherwise is properly admissible.\n5. Res Gestas\u2014 Failure to Give Warning by Ringing a Bell, When Admissible as:\u2014In an action for injuries sustained by reason of a collision of 'the plaintiff\u2019s wagon and a street car, where evidence of a failure to give warning of the approach of the car by ringing the bell is not available as a ground of liability, such failure may be shown as a part of the res gesta}, as bearing upon the exercise of care by the plaintiff in remaining upon the track while the car was approaching. 1\n6. Appellate Court Practice\u2014Objections Not Raised in the Court Beloio.-\u2014An objection that the names of certain jurors given in the bill of exceptions as returning the verdict, vary from the names of those impaneled and sworn to try the case, not made in the court below when the verdict was returned, and when the discrepancy might have been cured, can not be raised for the first time in this court.\nTrespass on the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1900.\nAffirmed.\nOpinion filed March 25, 1901.\nStatement.\u2014This suit was brought by defendant in error for the use of B. J. Kriz, to recover damages alleged to have resulted from negligence of plaintiff in error. Defendant in error was driving a milk wagon upon Twenty-fifth street in the city of Chicago, and was upon one of the tracks of the plaintiff in error. While attempting to turn his horse out of the tracks, and while the wagon was still partially upon the tracks, a car of plaintiff in error approaching from behind, struck the wagon, and injured the wagon, the contents thereof, and defendant in error. For such damages as he had sustained by reason of the injuries to himself and to his property this action was brought.\nThe trial resulted in verdict and judgment against plaintiff in error, to reverse which this writ of error is prosecuted.\nDepress, Brace & Bitter, attorneys for plaintiff in error.\nJones & Lusk, attorneys for defendant in error." }, "file_name": "0277-01", "first_page_order": 301, "last_page_order": 305 }