{ "id": 5806426, "name": "The Lake Erie and Western Railroad Company v. John B. Wills", "name_abbreviation": "Lake Erie & Western Railroad v. Wills", "decision_date": "1892-05-11", "docket_number": "", "first_page": "614", "last_page": "620", "citations": [ { "type": "official", "cite": "140 Ill. 614" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "2 Wash. 260", "category": "reporters:state", "reporter": "Wash.", "opinion_index": -1 }, { "cite": "2 Hen. & M. 446", "category": "reporters:state", "reporter": "Hen. & M.", "case_ids": [ 6727056 ], "opinion_index": -1, "case_paths": [ "/va/12/0484-01" ] }, { "cite": "6 B. Mon. 268", "category": "reporters:state", "reporter": "B. Mon.", "case_ids": [ 4440764 ], "opinion_index": -1, "case_paths": [ "/ky/45/0268-01" ] }, { "cite": "14 Pet. 19", "category": "reporters:scotus_early", "reporter": "Pet.", "case_ids": [ 3335410 ], "opinion_index": -1, "case_paths": [ "/us/39/0019-01" ] }, { "cite": "23 Ill. 618", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5803561 ], "opinion_index": -1, "case_paths": [ "/ill/23/0618-01" ] }, { "cite": "2 Johns. 149", "category": "reporters:state", "reporter": "Johns.", "opinion_index": -1 }, { "cite": "113 Ill. 439", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "36 Ill. 261", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "67 Ill. 71", "category": "reporters:state", "reporter": "Ill.", "weight": 2, "pin_cites": [ { "page": "153" } ], "opinion_index": -1 }, { "cite": "40 Ill. 236", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "81 Ill. 450", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2674515 ], "opinion_index": -1, "case_paths": [ "/ill/81/0450-01" ] }, { "cite": "53 Ill. 115", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5278516 ], "opinion_index": -1, "case_paths": [ "/ill/53/0115-01" ] }, { "cite": "3 Scam. 478", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2468767 ], "opinion_index": -1, "case_paths": [ "/ill/4/0478-01" ] }, { "cite": "37 Ill. 29", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5292245 ], "opinion_index": -1, "case_paths": [ "/ill/37/0029-01" ] }, { "cite": "13 Ill. 599", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2581560 ], "opinion_index": 0, "case_paths": [ "/ill/13/0599-01" ] }, { "cite": "122 Ill. 461", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5391068 ], "opinion_index": 0, "case_paths": [ "/ill/122/0461-01" ] } ], "analysis": { "cardinality": 659, "char_count": 13342, "ocr_confidence": 0.491, "pagerank": { "raw": 8.724443257361318e-08, "percentile": 0.4940069865077076 }, "sha256": "d02a038d5e6e5b2965d6904527915608afb298d4488b22b59909dc2f8f9868eb", "simhash": "1:80eaed164cf666e8", "word_count": 2319 }, "last_updated": "2023-07-14T18:32:28.193649+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The Lake Erie and Western Railroad Company v. John B. Wills." ], "opinions": [ { "text": "Mr. Justice Shope\ndelivered the opinion of the Court:\nThis was an action for personal injury to the person and.property of appellee, resulting from the collision of a handcar, propelled by the servants of appellant on its railroad track, with the wagon of appellee, at a street crossing in the-village of Saybrook. A trial resulted in a verdict for plaintiff,, upon which judgment was rendered, and which was, on appeal,, affirmed by the Appellate Court.\nAll questions of fact are by the judgments of the circuit and Appellate Courts settled affirmatively in plaintiff\u2019s favor, and are not the subject of review in this court. This includes the-extent of plaintiff\u2019s injury and right of recovery. Chicago and Eastern Illinois Railroad Co. v. Holland, 122 Ill. 461; Joliet v. Weston, 123 id. 642, and cases cited.\nIt is insisted, however, that the court erred in giving the ninth instruction for the plaintiff, as follows:\n\u201cThe court further instructs the jury, that if they find the defendant guilty under the testimony and instructions of the-court, then, in assessing the plaintiff\u2019s damages, the jury may-take into consideration not only the bodily disability occasioned by the accident, if any is proved, but also an impairment of the plaintiff\u2019s general health which is shown by the-evidence, and which the jury believe, from the evidence, will affect or impair his future ability to attend to his ordinary business the same as if the injury complained of had not occurred.\u201d\nIt is urged the court thereby assumed as a fact that \u201can-impairment of the plaintiff\u2019s general health\u201d was shown by the evidence, and that fact being assumed, took the question of whether there was permanent impairment from the jury. It is stated by counsel for appellee that the word \u201can,\u201d as shown in the instruction as originally given, was \u201cany,\u201d so that it-read as given, \u201calso any impairment of plaintiff\u2019s general health which is shown by the evidence,\u201d etc., and that the \u25a0error occurred in copying the instruction into the transcript. A suggestion of diminution of the record is made, and leave asked in this court to file an amended record. We have not \u25a0seen proper to determine appellee\u2019s right to the leave asked, .for the reason that we are inclined to concur with the Appellate Court, that while the instruction, in the form in which it appears in the record, can not.be approved, when it is considered in connection with the context and other instructions given! it could have done no injury. The objectionable clause is preceded by an instruction to the jury, that if they find for the plaintiff, in assessing his damages they might take into \u2022consideration the \u201cbodily disability occasioned by the accident, if any is proved.\u201d And immediately following the objectionable clause, and coupled to it by the conjunction \u201cand,\u201d is the \u25a0statement, that the jury are to take into consideration any impairment of plaintiff\u2019s general health \u201cwhich they believe, from the evidence, will affect or impair his future ability\u201d to \u25a0attend to his business. By the tenth instruction given for the plaintiff the jury were told, that in estimating the plaintiff\u2019s damages, present and prospective, they should give only \u25a0such damages as were shown by the evidence. In numerous instructions given on behalf of the defendant they were instructed, that to enable the plaintiff to recover, his right to do \u2022so must be shown by a preponderance of the evidence. It \u2022seems impossible that the jury could have been misled into \u25a0supposing that the court assumed as a fact that there had been permanent impairment of the plaintiff\u2019s general health. Moreover, it appears that the plaintiff, then seventy years old, \u25a0was by the collision thrown from his wagon, striking the ground some fifteen feet away, with great violence. One result was concussion of the brain, rendering him unconscious at the time and delirious for many days. His neck, shoulders :and body were bruised, one bone of his forearm broken and the other dislocated at the wrist, and, traumatic cataract supervening from the injury, he had, at the time of the trial, practically lost the use of one eye. It is true, a physician testified that the broken and dislocated wrist, at the trial, was \u201ca pretty good wrist,\u201d or \u201ca very good wrist;\u201d but it is appar\u25a0ent this language was used in a comparative sense, and not .as intending to intimate that the wrist was not permanently injured. Without commenting further upon the evidence it is, when all the evidence is considered, practically undisputed that the plaintiff was, in the language of the Appellate Court, ^\u2018seriously and permanently crippled\u201d and disabled. The instruction was not liable to mislead the jury, and its being given was not prejudicial error.\nIt is also objected that the declaration was defective, and insufficient to support a judgment. The particular defect alleged is, that the ad damnum appears at the end of the third count of the declaration, and not elsewhere. The declaration consists of what appear to be four counts, the fourth being added after the ad damnum. There is no pretense that the first three counts do not state a good cause of action. But it is said, that if the evidence warrants a recovery at all, it could be under the third count only, as the ad damnum can apply only to that- count. The uniform practice is to place the ad damnum at the end of the declaration, and it then applies to counts which precede it. It is not necessary or proper to add it to each count. (Burst v. Wayne, 13 Ill. 599.) If objectionable on special demurrer, the first three counts of the declaration were clearly sufficient after verdict.\nIt is objected that there was no evidence showing that appellant was the owner of or operating the railway, or that the men in charge of the hand-car were in the employ of appellant. The fact that the defendant was in possession of the railroad and operating it, and that the men in charge of the hand-car were its servants, was assumed and practically conceded by both parties, and the case throughout tried on that theory. In at least three of the instructions asked by the defendant, and given, the fact that the defendant was in possession of the railroad and operating it is directly assumed. No objection was made, or suggestion of the want of direct proof of these facts, before the return of the verdict. Under these circumstances the contention is without merit. Both the court and jury were warranted in proceeding upon the theory that the proprietorship of the railroad, and the relation of the men in charge of and operating the hand-car with the defendant, were uncontroverted, and there was no issue, as there was in fact no real contention, in respect of such facts.\nWe find no error in this record which entitles appellant to a reversal of the judgment of the Appellate Court, and it is accordingly affirmed.\nJudgment affirmed.", "type": "majority", "author": "Mr. Justice Shope" } ], "attorneys": [ "Mr. W. E. Hackedorn, and Mr. A. E. DeMange, for the .appellant:", "Mr. Thomas F. Tipton, for the appellee:" ], "corrections": "", "head_matter": "The Lake Erie and Western Railroad Company v. John B. Wills.\nFiled at Springfield\nMay 11, 1892.\n1. Practice\u2014conceded facts\u2014waiver of proof. Where, on the trial of an action to recover of a railway company for a personal injury on the ground of negligence in operating the road, it is practically conceded by both parties that the defendant was in the possession of the road and operating it, and that the men in charge of the road and its machinery were servants of the defendant, the objection that such facts are not proven will be devoid of merit.\n2. Instructions'\u2014whether assuming facts. On the trial of an action to recover for a personal injury to the plaintiff, the court instructed the jury, that if they found the defendant guilty, then, in assessing the plaintiff\u2019s damages, they might take into consideration, not only the bodily disability occasioned by the accident, if any was proved,, but \u201calso an impairment of the plaintiff\u2019s general health which is shown by the evidence, and which the jury believe, from the evidence, will affect or impair his future ability to attend to his ordinary business, the same as if the injury complained of had not occurred.\u201d By another instruction for the plaintiff the jury were told, that in estimating his damages, present and prospective, they should give only such damages as were shown by the evidence, and in many of the defendant\u2019s instructions the jury were told that the plaintiff\u2019s right of recovery must be shown by a preponderance of the evidence: Held, that the instruction first mentioned, taken in connection with the others, was not such as to mislead the jury, as assuming that the plaintiff\u2019s general health was impaired by the injury.\n3. Pitead in os\u2014of the ad damnum. It is the uniform practice to place the ad damnum at the end of the declaration, and then it applies to each of the counts which precede it. It is .not necessary to add it to each count.\n4. Same\u2014defects in, after verdict. Defects in counts of a declaration which require a special demurrer to reach them, .will be sufficient after verdict.\n5. Appears\u2014reviewing questions of fact. Where the Appellate Court \u25a0affirms a judgment of the trial court for the plaintiff, in an action to recover for a personal injury and an injury to property, the judgment of affirmance will settle affirmatively all controverted questions of fact in the plaintiff\u2019s favor, and they will not be subject to review in this court. This includes the extent of the plaintiff\u2019s injury and right of recovery.\nAppeal from the Appellate Court for the Third District;\u2014 heard in that court on appeal from the Circuit Court of \"McLean county; the Hon. Owen T. Reeves, Judge, presiding.\nMr. W. E. Hackedorn, and Mr. A. E. DeMange, for the .appellant:\nNo proof was made that the defendant was operating the railroad on which the accident occurred, or that its employes were .running the hand-car which collided with the plaintiff\u2019s wagon.\nNo recovery can be had upon any count in the declaration in excess of the acl damnum in such count. Pierson v. Finney, 37 Ill. 29; Wallcott v. Holcomb, 24 id. 331.\nEach count of the declaration is independent, and must stand upon the proof adduced to support it, and proof of one count can not be made to supply want of proof of another -count. Brown v. Burnett, 10 Bradw. 279; Porter v. Drennan, 13 id. 362; Burnap v. Dennis, 3 Scam. 478.\nThe verdict in this case is clearly against the evidence. The injury to the plaintiff is attributable solely to his own thoughtlessness and gross negligence. Railroad Co. v. Fears, 53 Ill. 115,\u2014a case very similar to the one at bar.\nPlaintiff went upon the crossing heedlessly and recklessly, without any precaution to ascertain whether or not the track' was clear. This was gross negligence. Railroad Co. v. Damerell, 81 Ill. 450; Railway Co. v. Jones, 76 id. 316,\nThe place ivas well known to plaintiff to be a very dangerous one, and in proportion to the magnitude of his danger should have been his care. It was his duty before driving upon the track to use his senses of sight and hearing, to avoid \u25a0danger. And the negligence of the railroad company in leaving its stock car in the street does not excuse him for his lack of ordinary care. Railway Co. v. Hicks, 13 Bradw. 407; Railroad Co. v. McKean, 40 Ill. 236; Railway Co. v. Dimick, 96 id. 45; Railroad Co. v. Jacobs, 63 id. 178; Railroad Co. v. Lee, 68 id. 583; Railway Co. v. Hatch, 79 id. 137.\nThe jury should have been left to determine, from the evidence, whether or not the fact existed; and the possibility, or even probability, that .the jury may have construed the word \u201can\u201d as meant to be the word \u201cany\u201d does not lessen the error or the injustice to appellant\u2019s rights. Railway Co. v. Larmon, 67 Ill. 71; Russell v. Minteer, 83 id. 153; Small v. Brainard, 44 id. 355.\nThe judgment in the case last above cited was reversed largely because the court thought the damages found by the-;jury were excessive, and the court could not say the jury was not misled by an instruction which assumed a fact upon which the amount of the verdict may have been based. Duffield v. Delancey, 36 Ill. 261; Bond v. People, 39 id. 26; Farnan v. Childs, 66 id. 544; Railroad Co. v. Manly, 58 id. 304; Barrelett v. Belgard, 71 id. 282; Chicago v. Scholten, 75 id. 472.\nMr. Thomas F. Tipton, for the appellee:\nThe affirmance of the judgment by the Appellate Court demonstrates appellee\u2019s right to recover. The question as to> whether the damages awarded in the case are excessive or notr is a question of fact, and not a question of law that arises here. Beeler v. Webb, 113 Ill. 439; Joliet v. Weston, 123 id. 642; Beard v. Maxwell, 113 id. 440; Railroad Co. v. Holland, 122 id. 461; Car Co. v. Bluhm, 109 id. 20; Mann v. McKiernan, 110 id. 19.\nIt is not necessary to state the ad damnum to each and every count. 1 Chitty\u2019s Pl. 9; Barruso v. Madan, 2 Johns. 149.\nThe ad damnum is the logical and legal sequence of the case-stated ; but as the damage can only be claimed as the legal 'result of the case stated when proved, and the ad damnum is but the legal conclusion, therefore it is not of substance, and if omitted or left blank the judgment will nevertheless be sustained. 1 Sutherland on Damages, 759, 760; Mattingly v. Darwin, 23 Ill. 618; Hargrave v. Penrod, Beecher\u2019s Breese, 401; Bank v. Guttschlick, 14 Pet. 19; Proctor v. Crozier, 6 B. Mon. 268; Croghill v. Page, 2 Hen. & M. 446; Stephens v. White, 2 Wash. 260." }, "file_name": "0614-01", "first_page_order": 614, "last_page_order": 620 }