author: Mr. Justice Davis

text:
    Fred W. Wanless, Appellee, v. Peabody Coal Company, Appellant.
    Gen. No. 9,060.

      Opinion filed January 17, 1938.
    Rehearing denied April 5, 1938.
    Provine & Williams, of Taylorville, 'and Clark H. Miley, of Springfield, for appellant.
    Doyle, Sampson & (tiffin and (tiffin, Lindner, New-kirk & Jones, of Springfield, and Paul F. Wanless, for appellee; C. Terry Lindner and Alfred F. Newkirk, both of Springfield, of counsel.
   Mr. Justice Davis

delivered the opinion of the court.

This is an appeal from a judgment recovered by plaintiff appellee, Fred W. Wanless, against defendant appellant, Peabody Coal Company, in the circuit court of Sangamon county, said suit having been commenced by the issuance of a summons and filing of a complaint by plaintiff on April 3, 1935.

The original complaint consisted of one count. The court granted plaintiff leave to file an amended complaint consisting of one count, in which he alleged that on December 31, 1917, and since said date, he has been the owner of 160 acres of land, and that, from June 22, 1926, the defendant has been possessed of a certain coal mine, known as mine no. 57, in Sangamon county, Illinois, and was possessed of the coal underlying the land of plaintiff; that the defendant dug and removed coal from under the premises of plaintiff in such manner as that sufficient support was not left to maintain the lands of plaintiff in their natural position, and that, by reason thereof, certain portions of the surface of said land subsided and the plaintiff was damaged.

A motion to dismiss the amended complaint, supported by affidavit, was filed by the defendant, to which plaintiff filed suggestions in opposition thereto and the court, upon a hearing, denied the motion to dismiss and ruled the defendant to answer. The answer of defendant admitted the ownership of the lands by plaintiff except the underlying coal, but denied it had been in possession of the mine since June 22,1926; it admitted the operation of the mine and denied the material allegations of the amended complaint and that plaintiff was entitled to recover any damages, and prayed a judgment in bar.

The case was called for trial and a jury selected and sworn to try the same. During the course of the trial leave was given plaintiff to file a second count to the amended complaint. In this second count plaintiff alleged that about May 1,1928, six Illinois corporations, known as the Peabody Coal Company, Industrial Coal Company, Midland Counties Coal Company, Southern Counties Coal Company, Merchants Metropolitan Coal Company and Big Muddy Coal Company, called the “constituent corporations,” merged or consolidated into a new corporation under the name of Peabody Coal Company, and that from June 22, 1926, until May 1, 1928, the original Peabody Coal Company was possessed of and using and operating a coal mine, known as Peabody Mine No. 57, and since May 1, 1928, defendant has operated the same. That the original Peabody Coal Company and the defendant (Peabody Coal Company) have mined and removed the coal from under the lands of plaintiff to such an extent and in such manner that sufficient support was not left under the land; but plaintiff is unable to state what part of the coal was mined and removed from under his land by the original Peabody Coal Company and what part by the defendant. That by reason thereof the surface of the lands was caused to subside and plaintiff was damaged. The answer of the defendant to the complaint as amended denied the allegations thereof and denied that plaintiff was entitled to any relief or recovery.

A motion by defendant for a directed verdict, made at the close of defendant’s case, was denied by the court and a similar motion at the close of all of the evidence was denied. The jury returned a verdict in favor of plaintiff, assessing his damages at $18,227. Defendant filed a motion for a new trial and also moved the court for a judgment in its favor and in bar of plaintiff’s action, notwithstanding the verdict of the jury, which motions were overruled by the court. The court thereupon rendered judgment upon the verdict of the jury and this appeal followed.

During the progress of the trial and after the second count was filed to the amended complaint, the circuit court granted plaintiff leave to amend his amended complaint by excluding by interlineation from the description of the lands therein described that part of the tract lying to the north and east of the Rochester hard road, being State bond issue route 24.

The case finally went to the jury on the amended complaint of plaintiff and second count thereof and the complaint as amended, alleging damages to approximately 110 acres of land, caused by the original Peabody Coal Company and the consolidated company, Peabody Coal Company, defendant, removing coal underlying the same in such manner as that sufficient support was not left to maintain the lands of plaintiff in their natural position and by reason thereof certain portions of the surface of said lands subsided and upon the answers of the defendant to said amended complaint and second count thereof as amended.

Appellant insists that the court erred in holding that the statute of limitations began to run from the time the subsidence occurred and not from the time of the removal of the coal. This question arose upon the motion of plaintiff to strike a part of the answer of defendant to the first count of the amended complaint, wherein it is alleged that no coal had been mined from under the lands of appellee during the five years preceding the filing of the suit, which motion was granted by the court. The court also instructed the jury that the statute began to run from the time of the occurrence of the subsidence and not, as contended by appellee, from the time of the removal of the coal.

Counsel for appellant states that, in discussing the issues of the case, they have assumed that the statute of limitations begins to run from the time there is a change in the condition of the surface, which is admitted by them to be in accordance with the rule announced in Morris v. Saline County Coal Co., 211 Ill. App. 178; Donk Bros. Coal & Coke Co. v. Slata, 133 Ill. App. 280; Treece v. Southern Gem Coal Corp., 245 Ill. App. 113. And further say that the point involved does not appear to have been passed upon by the Supreme Court of this State, but that the better rule, on principle, would appear to be that the statute begins to run from the time of the removal of the coal. This question is settled by the cases cited by appellant, and the trial court did not err in holding’ that the statute of limitations began to run from the time a change in the condition of the surface of the land took place.

Appellant also insists that the second count of the amended complaint filed, by leave of court on June 3, 1936, states a new cause of action and that the statute of limitations should commence to run on June 3, 1931, instead of April 3, 1930. The second count of the amended complaint alleges the merger or consolidation of six corporations into a new corporation under the name of Peabody Coal Company, and that the coal had been removed by the original Peabody Coal Company and by the consolidated company, Peabody Coal Company, defendant. That, as a result of such removal, the subsidences had occurred within five years prior to the bringing of the suit. A motion was made to dismiss the second count of the complaint because the action sued on did not accrue within five years. The court overruled the motion.

A statute in force in this State at the time of the merger or consolidation of these corporations provided: That all rights of creditors shall be preserved unimpaired, and all liabilities and duties of the respective corporations shall attach to such single corporation and may be enforced against it to the same extent as if such liabilities and duties had been incurred and contracted by it, and that any action pending against one of the corporations, merged or consolidated, may be prosecuted to judgment as if consolidation had not taken place, or the merged or consolidated corporation may be substituted in its place. Callaghan’s Ill. St. Ann. ch. 32, j[ 71. Under the provisions of this statute plaintiff could recover against Peabody Coal Company any damages sustained by reason of the negligent act of either of the respective merging corporations within the five years previous thereto.

Sec. 46 of the Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, § 170; Jones Ill. Stats. Ann. 104.046], provides that if the time prescribed or limited for the bringing of an action had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter, which is a necessary condition precedent to the right of recovery, when such condition precedent has in fact been performed, the cause of action shall not be barred by lapse of time, and for the purpose of preserving such cause of action any such amendment shall be held to relate back to the date of the filing of the original pleading so amended. A plaintiff is at liberty to state his cause of action in one or more counts and recovery may be had if he proves one or more of the counts.

The amended complaint alleges that defendant, Peabody Coal Company, negligently removed the coal from under the lands of plaintiff and thereby caused the damages. The second count of the amended complaint alleges the consolidation of the six corporations under the name of Peabody Coal Company and that the original Peabody Coal Company and Peabody Coal Company, defendant herein, negligently removed the coal and thereby caused the damages complained of. In 1929 sec. 39 of the Practice Act of 1907 was amended by adding a paragraph somewhat similar to sec. 46 (2) of the Civil Practice Act. Under the provisions of said section the cause of action in the amended pleading must not only grow out of the same transaction or occurrence, but it must be substantially the same as set up in the original pleading.

It is said by McCaskill, in the 1936 Supplement to Illinois Civil Practice Act Annotated, page 126, that:

“Section 46 of the Civil Practice Act has not only made some important changes in the language of a particular section, but it is given a new setting. It is no longer incumbered with the traditions of common-law pleading and practice, but is a part of a revised system of procedure designed to subordinate form to substance. Principles of old procedure are retained only when they further justice. Only to the extent they are persuasive have former decisions any effect. With this different approach there should be no difficulty in announcing the true meaning of the section, for its language is clear.”

There is no requirement that the original pleading state a cause of action. It must disclose a transaction or occurrence, and the same transaction or occurrence disclosed by the amended complaint. The cause of action asserted in the second count grew out of the same transaction or occurrence set up in the original pleading. It covered the same period of time, and the removal of the coal underlying plaintiff’s lands in such manner as that sufficient support was not left to maintain the lands of plaintiff in their natural position, and for that reason certain portions of the surface thereof subsided was the negligence charged in each count of the amended complaint. The only difference is as to the statement of liability of defendant, the first count of the amended complaint alleging that Peabody Coal Company, defendant, negligently removed coal and was liable therefor, and the second count of the amended complaint alleging that the original Peabody Coal Company and Peabody Coal Company, defendant, negligently removed coal and that Peabody Coal Company, defendant, was liable therefor.

Both the amended complaint and the second count thereof set out causes of action good as against motions to dismiss in the nature of demurrers, but the liability of defendant was stated differently in the two counts. There is no question but that both could be joined in one complaint if done before the running of the statute. They are not separate causes of action because a judgment on either count would bar recovery on the other. Both are pleaded to avoid a variance on the trial, but they are different statements of the same cause of action. In form they are separate liabilities, but in fact they represent a single liability of the defendant. We are of opinion that the court did not err in not restricting the evidence to changes in the surface of the land after June 3,1931, as contended for by appellant.

Appellant makes the claim that there is no competent evidence in the record as to the extent of plaintiff’s damages for the reason that plaintiff’s witnesses, in fixing the amount of his damages, considered speculative and improper elements, and that all evidence as to the amount of damages was based upon the erroneous assumption that the depressions appeared after April 3, 1930, that plaintiff sought to establish the amount of his damages by a comparison between the fair cash market value of the land in two conditions. In the first condition it was assumed that there was on the land, dn April 3, 1935, one subsidence only, depression 2, plaintiff’s exhibit, and the witnesses expressed their opinions as to the value of the land. They were then asked to assume the second condition, viz.: that, as of the same date, four depressions, no's. 1, 2, 3 and 4, plaintiff’s exhibit, were on the land and the witnesses expressed their opinions as to the value of the land in that condition, and the difference between the two figures represented the depreciation in value of the land, due to the additional depressions.

We have considered the testimony of the witnesses for plaintiff on the question of values and find that not one of the witnesses considered fear of future subsidences or speculative and improper elements of damages in arriving at their opinion as to values. The opinion of each witness was based upon the experience of the witness as to the value of lands of like character as those involved in this suit. Several witnesses, all of whom resided in and around the vicinity of the land in question, among whom were persons having long experience in the real estate and farm loan business and who were familiar with land values in Sangamon county, and who had experience with land from which coal had been removed and who knew the lands in question, gave their opinions as to the amount of damages, based upon their experience with lands of the character of those involved in this suit.

To questions propounded oh cross-examination some of the witnesses testified that certain elements of damage, which were speculative and improper elements to be taken into consideration in fixing damages and which were suggested by the examiner, would affect the value of the lands, but their opinion was based upon their experience in selling and dealing with this character of land and not upon speculative and improper elements of damage. All of the elements of damage testified to on cross-examination, that was speculative or improper, were called out by the questions of counsel on cross-examination and none of the witnesses were interrogated as to what elements of damage were considered by the witness in making up his opinion as to values, but questions suggesting improper and speculative-elements of damage were asked the witnesses, and they were led to admit that there existed other elements of damage which were specultive and improper to be taken into consideration in fixing values.

Defendant moved the court to strike all portions of the evidence of the witnesses as to the amount of damage testified to because it developed upon cross-examination that each of the witnesses had, in arriving at his opinion, applied an erroneous standard and taken into consideration elements barred by the law in subsidence cases, which motion was denied by the court. The circuit court did not err in refusing to strike the testimony of the witnesses as to the amount of damage testified to by them.

Whether the evidence of plaintiff as to the amount of damages was based upon the erroneous assumption that the depressions appeared after April 3, 1930, as contended by plaintiff, depends upon whether from the greater weight of the evidence it was proven that the depressions appeared before or after April 3, 1930. There is in the record evidence that on April 3, 1930, only one depression was on the land and the plaintiff could, in the questions to the witnesses in calling for their opinions as to value, assume that only one subsidence was on the land on April 3, 1930.

Appellant further contends that all four depressions were in existence prior to April 3, 1930, and that during the five-year period thereafter there was no change in their size, shape or depth, and for this reason the trial court should have directed a verdict for the defendant ; the verdict is not supported by the evidence; the valuation evidence offered by plaintiff was wrong in premise, and should have been excluded upon defendant’s motions; the exhibits offered by plaintiff were not admissible; the verdict was excessive; and the court committed error in the giving and refusing of instructions.

Ray V. Tilly, a civil engineer, testified that he made three surveys of the land in 1935. He reproduced the notes taken on these surveys on plaintiff’s exhibit 14, a contour plat showing elevations, and that plaintiff’s exhibit 15 was drawn to show the general locations of the depressions on the land, which are indicated on the exhibit as sinks nos. 1, 2, 3 and 4.

Several witnesses testified on behalf of plaintiff as to the time of the occurrence of the several depressions. One a tenant on the farm for 36 years and farm hands who had worked on the place for quite a number of years besides Fred Wanless and his brother, Charles. It was agreed by all the witnesses that the first subsidence, sink no. 2, occurred in 1929. That sink no. 1 next appeared, in the year 1931, as late as May or June or later, and that no subsidence took place in the year 1930; that sink no. 3, in the fall of 1931 or in 1932, and all agreed that sink no. 4 appeared in 1935.

The deposition of George C. McFadden who, until 1936, was assistant vice-president of defendant in charge of operations was read. He identified defendant’s offered exhibits, numbered 1, 2, 6, 9, 12, 14 and 16, letters written by officers of the company, and which, on motion of plaintiff, were not admitted in evidence.

Robert J. Christ, former division engineer of defendant, testified he went upon the land in question in June, 1928, and inspected the same and saw the depressions. In July, 1929, he made his first survey of the land and made a plat of the premises from his notes of the survey and also made a tracing from it, which is defendant’s exhibit 7, and that he sent it to McFadden in Chicago. There were depressions on the land, indicated on defendant’s exhibit 7 by the letters A, B, C and D. He again surveyed the depressions, A, B and C, in 1935.

Two witnesses, who were division engineers of the defendant, went upon the land in 1928 and saw the depressions, A, B and C, and they with one other witness gave it as their opinion that depression 4 was not a mine sink.

Four witnesses, who resided in Springfield and who were either farm managers and did appraisal work or owned farm lands and knew farm values, testified as to their opinions of the damages sustained by plaintiff.

Appellant contends that it is shown by the clear preponderance of the evidence that all of the depressions were on the land as early as July, 1929; that there is in the record some evidence of the witnesses, who were on the land from time to time, who say they first noticed depressions at later dates; that, in comparison with the mass of direct, circumstantial and corroborative evidence offered by defendant clearly establishing the existence of those depressions long prior to the pertinent date, the evidence of plaintiff’s witnesses is of little weight. Appellant further contends that the difficulty in this case is only in part that the conclusion reached by the jury is against the weight of the evidence. This case presents a different situation. The verdict of the jury is not only against the weight of the evidence, but is in conflict with admitted facts. The question presented is not whether a verdict as to a disputed fact should be allowed to stand, but whether the facts shall be compelled to give away to the verdict.

We have carefully considered the evidence and are unable to agree with the contention of appellant that it appears from the greater weight of the evidence that the depressions were in existence and of the same size, shape and depth in the fall of 1929 as they were when the suit was filed on April 3, 1935.

The witnesses for plaintiff were familiar with the land, and some of them had worked there for many years as farm hands and were in a position to know the conditions of the surface, and they testified as to when the subsidences appeared and all agreed that, with the exception of subsidence no. 2 as shown on plaintiff’s exhibit, all occurred subsequent to April 3, 1930. The question as to when the several subsidences occurred was a question of fact for the jury. We are also of the opinion that the verdict of the jury is not contrary to the manifest weight of the evidence, and is not in conflict with the admitted facts.

In arriving at the conclusion that the verdict is against the weight of the evidence and is in conflict with the admitted facts, counsel for appellant refers to, considers and comments upon the weight as evidence of defendant’s offered exhibits 1, 2, 6, 9, 12, 14 and 16, all of which were excluded from the consideration of the jury by the court and are entirely outside of the record. We are unable to agree with appellant’s contention that a comparison of plaintiff’s exhibit 14 with defendant’s exhibit 7 would conclusively show that plaintiff’s land had not changed in contour in the last six years.

Objection is also made to the admission by the court of plaintiff’s exhibits, nos. 1, 15 and 16, for the reason that in the caption of each there appears the words, “Mine Sinks in S. W. %A, Sec. 36, 16-5, W. of 3rd P. M., investigation by Wood, Walraven & Tilly, surveyed March 14,1935, and May 24,1935. ’ ’ The exhibits each contained the words, “Sink No. 1,” “Sink No. 2>” “Sink No. 3,” “Sink No. 4.” There is no doubt but that a plat, which bears written recitals that might be considered by the jury as testimony, is incompetent and should not be admitted in evidence over the objection of the opposing party. We fail to find in the abstract of the record where any objection was made to either of these exhibits upon the ground that they contained incompetent, descriptive matter which might be considered by the jury as testimony in the case. If such objection had been made in the trial court the improper matter could have been eliminated. Not having raised the question in the trial court it cannot now be urged on appeal. Another error is called to our attention. One of the instructions informed the jury that they were to disregard any damage to plaintiff either on account of the occurrence or increase in size of depression no. 2, but the court permitted these exhibits in which sink no. 2 was clearly outlined in exaggerated form to go to the jury. This was not called •to the attention of the trial court.

Appellant insists that the court erred in excluding its offered exhibits 1, 2, 6, 9, 12, 14 and 16, and states that all questions as to the identification of these letters were waived, and they were admitted to be genuine as to content and correct as to dates, that plaintiff’s counsel contends, and the trial judge fell into the error of assuming, that the letters were barred by the hearsay evidence rule, but the letters fell within an important exception to the hearsay rule, viz.: that in cases where, regardless of the truth or falsity of the statement, the fact that the statement has been made is relevant, the hearsay rule does not apply and the statement may be shown.

These letters were all written in the years, 1928, 1929, and the last one in March, 1930, and by officers and employees of the defendant to some officer or employee and the subject matter of the letters was the surface condition of the land in question, and the giving of opinions as to whether subsidences had occurred and directions from superior officers to others as to what should be done relative to determining, from an inspection of the surface of the land, as to whether cracks had appeared and investigation as to costs of drainage.

Although offered on the theory that they were competent to substantiate the statement of witnesses for defendant, who testified that subsidences had occurred as early as 1929 to 1930 and 1931, yet, if admitted, in evidence, the obvious effect would be to convey to the jury evidence of the fact that all subsidences had occurred prior to April 3, 1930, and more than five years prior to the commencement of the suit.

This question is similar to the one decided by our Supreme Court in the case of Bagley v. Grand Lodge of A. O. U. W., 131 Ill. 498. In that case John H. Bagley, a deceased son of Margaret Bagley, the plaintiff in error, was the holder of a beneficiary certificate in which his mother, Margaret, was designated as beneficiary. The contention of the defendant was that before the death of John the right of recovery was forfeited by the failure to pay certain assessments which were required to be paid to keep his certificate valid. The trial court admitted in evidence, over the objection of the plaintiff, various letters and correspondence which passed between the grand master workman of the order and various members of the judiciary committee of the association, in which facts, upon which were supposed to be based the claim of plaintiff and the defense of the order, were stated and commented upon at length, and the merits of the demand made by plaintiff and the question of the legal liability of the defendant were discussed, and the opinions of the writers expressed. The court said: “It would seem it needs no argument and no citation of authorities to show this action of the court was erroneous. The opinions of the officers of the defendant corporation were immaterial, and it is contrary to first principles that such opinions and the statements of the officers of one party to the suit, in regard to the law and the facts involved in the controversy, made in the absence of the opposing party, should go as evidence to the jury trying the issues. The law does not permit a party to a suit to thus make evidence for itself. ’ ’

It is an admitted fact that depression no. 2 had occurred prior to April 3, 1930, and the controverted fact as to whether depressions, nos. 1, 3 and 4, were in existence and of the same size, shape and depth in the fall and summer of 1929, as they were when the suit was filed on April 3, 1935, could only be proven by competent evidence introduced on the trial. We are of opinion that the trial court did not err in sustaining the objections to the admission in evidence of exhibits 1, 2, 6, 9, 12, 14 and 16, offered by defendant.

Appellant insists that the giving of instruction no. 5%, on behalf of plaintiff, was error. This instruction is as follows:

“The Court instructs the Jury, that in fixing the amount of the damages to which the plaintiff , is entitled, if any, you are not bound by the opinion of any particular witness or witnesses who have testified in this case. In fixing the amount of such damages, if any, you have the right to consider not only the opinion of any such witness or witnesses, if any, but all other facts and circumstances of the case, in so far as the same have any bearing upon that issue, if any, and also your own knowledge and experience as men, in so far as the same will enable you to arrive at a just and fair conclusion upon said issue of damages, if any.”

Appellant takes the position that, in fixing the amount of plaintiff’s damages, the jury did not have the right to take into consideration their “knowledge and experience as men.” We are of opinion that this instruction is erroneous in that regard.

In cases, under the eminent domain statute, a view of the premises is required, at the request of either party, and such view is in the nature of evidence and may be considered by the jury in making up their verdict, and for that reason, in those cases, an instruction is proper which informs the jury that they have a right to use their own knowledge of land values, if any, gained 8 through experience and observation, and that from a consideration of the testimony of the witnesses and the jury’s view of the premises and their own experience and knowledge of land values, if any, the jury may endeavor to arrive at the fair cash market value of the land sought to be condemned. Sanitary Dist. of Rockford v. Johnson, 343 Ill. 11, 174 N. E. 862. In these cases, however, the jury may not ignore the evidence and fix compensation and damages contrary thereto, and in such cases it is only where the evidence is conflicting that the jury may draw their conclusions from view, and, even then, a verdict beyond the maximum or less than the minimum fixed by the testimony will not be sustained. City of Chicago v. Koff, 341 Ill. 520, 173 N. E. 666.

It is only because of the fact that the eminent domain statute requires a view of the premises at the request of either party, that the jury may consider its view of the premises in making up their verdict, and the court can instruct them that they have a right to use their own knowledge of land values gained through experience and observation in arriving at the fair, cash market value of the land to be taken.

At common law, view by the jury was permitted in certain actions affecting real estate, the purpose of which was to better enable the jury to understand and apply the evidence at the trial to the matter in controversy, and such view was allowed only at the discretion of the court. The jury were not, under the common law, authorized to consider as evidence any facts derived from such view, but the issue of fact was to be determined from the evidence offered on the trial, the reason being, that if the jury be allowed to consider their view as evidence, reviewing courts would not know upon what the jury based their finding or determine whether it was based on competent evidence or upon the consideration of incompetent matters that were not admissible under the issue. City of Chicago v. Koff, supra.

The jury in this case did not" view the premises and, even if the court in its discretion had permitted such view, its purpose would have been merely to enable the jury to understand and apply the evidence introduced at the trial and they would not be authorized to consider as evidence any facts which were derived from such view. Neither at common law nor by statute is a jury authorized in an action for damages to real estate to consider, in addition to the evidence offered on the trial, their own knowledge and experience as men, to enable them to arrive at a just and fair conclusion upon the issue of damages. It was the duty of the jury in this case to consider all the evidence in the record upon the question of damages, in arriving at their verdict. The giving of this instruction was error.

Appellant also complains of the giving of plaintiff’s instruction no. 2, which is as follows:

‘ ‘ The court instructs the jury that even though you should believe from the greater weight of the evidence that neither one or more of the sinks or subsidences, referred to herein as Sinks numbered 1, 3 and 4 respectively, if any, on the plaintiff’s lands, were actually in existence five years before the filing of plaintiff’s suit herein, yet if during said five-year period such sink or subsidence, if any, increased either in area or depth, and that plaintiff’s land was damaged by such increase in size or depth, if any, the plaintiff would be entitled to recover such damages caused by such increase, if any, provided you further believe from the greater weight of the evidence that such increase in size or depth of such subsidence or subsidences, if any, was caused by the prior removal of the coal by defendant, or any of its constituent companies.”

It is true, as pointed out by appellant, that plaintiff offered no evidence as to the extent of his damages upon the theory that the depressions, although in existence prior to April 3,1930, increased in size during the succeeding five-year period and any such damages as the jury may have assessed must have been arrived at by the jury from their own knowledge and experience as men.

“The object of a declaration in an action at law is to state the facts constituting the plaintiff’s cause of action upon which he relies to recover, so as to enable the defendant to prepare his defense and meet the facts alleged with appropriate evidence. In order to recover, the plaintiff must prove the case alleged in his declaration. It is a primary and elementary principle that a plaintiff can recover only on the case made in his declaration. He cannot make one case by his allegations and recover on a different case made by the proof.” Feder v. Midland Casualty Co., 316 Ill. 552, 147 N. E. 468.

There is no allegation in the complaint of plaintiff that either one or more of the sinks, numbered 1, 3 and 4, were actually in existence five years before the filing of plaintiff’s suit and that during said five-year period such sink or subsidence increased in area or depth and that plaintiff’s land was damaged by such increase in area or depth, and even though the evidence may have proven such facts, yet the plaintiff could not recover because of a want of such allegation in its complaint. For the reasons pointed out we are of opinion that the court erred in giving to the jury plaintiff’s instruction number 2.

The position of the defendant, relative to the fixing of damages, is that, in so far as the ascertainment of the amount is concerned, these mine sinks, if they were such, should be treated precisely like other depressions, however caused, and defendant offered instructions 16, 17,18 and 19, in support of its position, which were refused by the court. They differed only in phraseology, and instruction 16 was as follows:

“The cause of the depression is not material upon the question of the amount of damages, if any, sustained by the plaintiff. The depressions do not injure the land to any greater extent merely because they are artificial in their nature than they would if natural conditions of the same size, location, shape and depth. ’ ’

“For the damages occasioned from subsidences of such parts of the land as had taken-place at the time this suit was commenced, the appellee could in this action recover, but not for such as might thereafter occur. ’ ’ Richards v. Gundlach, 245 Ill. App. 264. The injury complained of, being to the land itself, the measure of damage is the difference in the market value of said premises immediately before and after the injury in question. Richards v. Gundlach, supra. The testimony of competent witnesses as to their opinion of the fair cash market value of the premises, immediately before and after the injury in question, is one of the methods of arriving at the damages sustained. Chicago & E. R. Co. v. Blake, 116 Ill. 163.

Witnesses, testifying as to the fair cash market value of the premises after the injury, gave their opinion as to its then value based upon their knowledge and experience gained as dealers in real estate from farm loan business and appraisers of lands. The witnesses, testifying on behalf of appellee, stated on cross-examination that such lands were not as salable as lands with natural depressions of like area and depth and purchasers would not so readily buy such lands or pay so much therefor, not, so far as the testimony of such witnesses disclosed, that fear of future subsidences or speculative damages entered into the fixing of the amount such purchasers were willing to pay, but that such lands were not so much sought after, especially for building and platting purposes.

What prospective purchasers of lands of this character are willing to pay and the price at which such lands change hands, after the injury to the same, fixes the fair cash market value of the same, although if in establishing such values the purchasers take into consideration fear of future subsidences or other remote, speculative and uncertain elements of damage, the application of the rule would not result in the fixing of the true measure of damages. Because the evidence shows that mine subsidences on lands affect the sale value thereof more than natural depressions, we are of opinion that the contention of appellant, that relative to the fixing of damages, mine sinks do not injure the land to any greater extent than natural conditions, is without merit.

Appellant also assigns as error improper argument of counsel for plaintiff and that the verdict is excessive. While the argument of counsel for plaintiff should have been confined to the matters within the record, yet we do not think the conduct of counsel while improper, is reversible error.

The jury returned a verdict in the sum of $18,227, the fixing of the amount of which may have to some extent been influenced by the instruction of the court, informing them they could consider their own knowledge and experience as men, in so far as the same would enable them to arrive at a just and fair conclusion upon the issue of damages. In our opinion the verdict is excessive. It fixed the damages to the land at over $165 per acre and plaintiff still had the land, which, in its then condition, his witnesses testified was worth from $250 to $400 per acre, having on it four mine sinks, which from the testimony of his own witnesses on cross-examination would not hurt the land much or depreciate the fair cash market value thereof for subdivision purposes, to any appreciable degree, if the depressions were of natural origin.

We are of opinion that the case should be submitted to another jury under proper instructions as to the fixing of damages, and with argument of counsel confined strictly to the record in the case. For the errors indicated the judgment of the circuit court is reversed and the cause remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Orley Hughes, Administrator of the Estate of Dickie Hughes, Deceased, Appellant, v. Albert Medendorp, Appellee.
    Gen. No. 9,085.

      Opinion filed January 17, 1938.
    Rehearing denied April 5, 1938.
    Steely, Steely, Graham & Dysert and H. J. Hasch, both of Danville, for appellant; Walter V. Dysert, of counsel.
    Mann & Stifler, of Danville, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.

Orley Hughes, administrator of the estate of Dickie Hughes, deceased, by his appeal seeks to reverse a judgment of the circuit court of Vermilion, county, 111-inois, entered in bar of his action to recover damages against Albert Medendorp, appellee, for his alleged negligence which caused the death of Dickie Hughes, the son of appellant.

As cause for reversal of said judgment, in addition to the claim that the verdict of the jury was contrary to the manifest weight of the evidence, appellant also contends that the trial court erred in admitting evidence over his objection and also erred in refusing to admit proper evidence offered on his behalf, and in the giving of improper instructions on behalf of the defendant, and in refusing to give proper instructions tendered on behalf of plaintiff.

Appellant complains of the action of the court in permitting Eunice Medendorp, wife of the defendant, and Ruth Medendorp, a daughter of defendant, to testify for the reason they were directly interested in the event of the suit and the adverse party was suing as the administrator of a deceased person. Appellant fails to point out any interest that the witness, Ruth Medendorp, had in the outcome of the litigation, and we fail to see none and are of the opinion that she was a competent witness.

In support of the contention that Eunice Medendorp is an incompetent witness appellant insists that a proper construction of section 5 of the act of the legislature in relation to Evidence and Depositions, ch. 51, sec. 5, Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 107.071, renders a wife incompetent to testify in any action in which her husband is directly interested in the event thereof, when an adverse party sues as administrator of any deceased person. In this contention appellant is upheld by the case of In re Estate of Teehan, 287 Ill. App. 58.

Since the amendment of sec. 41, ch. 37, Smith-Hurd Auu. St. 1935 [Ill. State Bar Stats. 1935, ch. 37, ][49; Jones Ill. Stats. Ann. 36.039], an opinion of the Appellate Court is binding authority, not only upon said court, but upon all inferior courts in this State. The wife of the defendant was an incompetent witness in this case, and the admission of her testimony was reversible error.

There is no merit in the contention of appellant that the court erred in refusing counsel the right to comment upon statements made by counsel for defendant in his opening statement to the jury. Appellant insists that the court erred in refusing instructions one and two tendered in his behalf. These instructions were sec. 1 and part of sec. 2 of the Injuries Act [Ill. Eev. Stat. 1937, ch. 70; Jones Ill. Stats. Ann. 38.01, 38.02], and we are of opinion that the refusal of the court to give them did not have a tendency to jeopardize the rights of plaintiff, although it would not have been error to give them.

Instruction 5 was properly refused by the court for the reason that it assumes plaintiff’s intestate was struck by the automobile driven by defendant when the claim of defendant is that he ran into the car of the deceased. It is so worded as to cause the jury to speculate as to what he might have done or what he omitted to do that a reasonably prudent person of his age, intelligence and experience would have done or omitted under like circumstances.

Appellant contends that the first instruction given on behalf of appellee was erroneous. It is as follows: ‘ ‘ The court instructs the jury that the burden of proof in this case is upon the plaintiff to show that plaintiff’s intestate was not guilty of any negligence whatever that in any way proximately contributed to the injury to said plaintiff’s intestate, and if he fails to make such proof by the preponderance or greater'weight of the evidence, you should find the defendant not guilty, as to the first to sixth counts (inclusive), of plaintiff’s complaint.” This instruction informs the jury that the burden of proof is upon plaintiff to show that plaintiff’s intestate was not guilty of any negligence whatever that in any way proximately contributed to the injury. A plaintiff is not required to show anything. All he is required to do is to prove by a preponderance of the evidence that at and just before the time in question he was in the exercise of due care and caution for his own safety, but in this case the plaintiff was only required to prove by a preponderance of the evidence that at and just before the time in question plaintiff’s intestate was exercising that degree of care that a boy of his age, intelligence, capacity and experience would exercise under the same or similar circumstances. The word “show” means to make apparent or clear by evidence, to reasonably satisfy. Black’s Law Dictionary, Third Edition.

A plaintiff is not required to produce evidence to satisfy the jury or to prove his case by a clear preponderance of the evidence. Hurzon v. Schmitz, 262 Ill. App. 337; Nelson v. Fehd, 203 Ill. 120, 67 N. E. 828; McGuire v. Guthmann Transfer Co., 234 Ill. 125, 84 N. E. 723.

At common law a child under the age of seven years was conclusively presumed not responsible for his acts, between the ages of seven and fourteen years he was still so presumed to be, but this presumption might be overcome by proof of the intelligence or capacity of the child. That rule is recognized in this . State. Wolczek v. Public Service Co., 342 Ill. 482, 174 N. E. 577. This instruction was erroneous because it held plaintiff’s intestate to a higher degree of care than is required by the laws in this State.

It was not error to give instruction No. 2, complained of, where the jury were told if they find the plaintiff is not entitled to recover then they will have no occasion to consider the question of damages. Instruction 3, complained of is a proper instruction with one exception. It did not tell the jury that they may disregard the evidence of a witness when contradictory statements are made out of court, but. informs them that they may take such statements into consideration in determining what weight they may give to the testimony, which was proper. It was erroneous in telling the jury that, in determining what weight, “if any,” you should give the testimony of such witness. The words, ‘ ‘ if any, ’ ’ should not have been inserted in the instruction as they convey to the jury the idea that they can disregard his entire testimony on this account, which is not the law.

Instruction 4 informed the jury that under the law the defendant could not testify. And the fact that he did not take the stand is not to be considered as any evidence against him. This instruction singled out the defendant and gave undue prominence to the absence of testimony on his part. Instruction 5 informs the jury that if they believe that plaintiff’s intestate’s injuries were the result of a mere accident without any negligence on the part of the defendant they should return a verdict of not guilty. This instruction was held bad in the case of Streeter v. Humrichouse, 357 Ill. 234, where it pointed out that deceased was not injured by accident alone. Instruction 6 tells the jury that if they believe from the evidence that the injury to plaintiff ’s intestate was caused by his act in suddenly. running from the east side of the pavement to the west side of the pavement and was not caused by the negligence of the defendant, then the defendant was not liable, and it will not be sufficient to entitle plaintiff to recover to prove merely that his intestate was injured by colliding with the automobile owned by defendant. This instruction is erroneous in that it fails to inform the jury that they must further believe from the evidence, in so doing he was not exercising that degree of care that a boy of his age, intelligence and experience would exercise under the same or similar circumstances surrounding plaintiff’s intestate at the time in question. This instruction is also erroneous in that it selects a single item of evidence or one fact claimed to have been disclosed by the evidence and states that a certain conclusion does not follow. West Chicago St. Ry. Co. v. Petters, 196 Ill. 298.

Instruction 7 told the jury that if plaintiff’s intestate was guilty of any want of ordinary care which caused, or proximately contributed to his injury, then they should find the defendant not guilty. This instruction is erroneous in that it fails to take into consideration that plaintiff’s intestate was a boy of 13 years of age and states the law as applicable to a person of mature years. While instruction No. 8 was not in the usual form, we are of opinion that it states the law correctly. Instruction 9 tells the jury that if the evidence is evenly balanced, or if they cannot say on which side the evidence preponderates, it is their sworn duty to find for the defendant. This form of instruction has been repeatedly condemned by the courts, and should not have been given. Wolczek v. Public Service Co., 342 Ill. 482; Molloy v. Chicago Rapid Transit Co., 335 Ill. 164. In instruction 11, defendant attempted to inform the jury as to what constitutes wilful and wanton conduct, with which he is charged by the fifth count of the complaint, but confines his definition to gross want of care and an entire absence of want of care for the life, person or the property of others, in the operation of his automobile. An intentional disregard of a known duty, necessary to the safety of the person or property of another, such as exhibits a conscious indifference to consequences, makes a case of constructive wilfulness. Streeter v. Humrichouse, supra. This instruction is erroneous and should not have been given.

For the reasons indicated in this opinion the judgment of the circuit court of Vermilion county is reversed and the cause remanded for a new trial.

Reversed and remanded.


author: Mr. Justice Riess

text:
    Josephine M. Blumb, Administratrix of the Estate of Frank W. Blumb, Deceased, Appellee, v. Ben Getz, Appellant.
    Gen. No. 8,987.

      Opinion filed January 17, 1938.
    Rehearing denied April 5, 1938.
    Clarence W. Heyl, of Peoria, for appellant.
    Cassidy & Knoblock, of Peoria, for appellee.
   Mr. Justice Riess

delivered the opinion of the court.

Plaintiff appellee, Josephine M. Blumb, administratrix of the estate of Frank W. Blumb, deceased, filed suit against the defendant appellant, Ben Getz, and recovered judgment in the circuit court of Tazewell county in the sum of $3,000 for the benefit of the next of kin of plaintiff’s intestate, from which an appeal was taken to the April term, A. D., 1936 of this court. The judgment was reversed upon the ground that there was no evidence tending to prove due care on the part of appellee’s intestate and that a motion for a directed verdict in favor of the defendant should have been given by the trial court at the close of all the evidence. No further assignments of error were considered at that time by the Appellate Court. (Blumb v. Getz, 286 Ill. App. 623.) The record was further reviewed upon appeal to the Supreme Court, wherein it was held that there was nothing in the evidence which would have justified the trial court in finding, as a matter of law, that the plaintiff’s intestate was not in the exercise of due care or was guilty of contributory negligence at or just prior to the time of the accident. The judgment was there reversed and the cause remanded to the Appellate Court with directions to consider the assignment of errors other than the above, if any appear, and thereupon affirm the judgment of the trial court or to reverse and remand the cause for a new trial. (Blumb v. Getz, 366 Ill. 273.)

The complaint consisted of two counts, in the first of which it was charged that Ben Getz was operating and managing a motor vehicle in his own behalf and as agent and servant of Boss C. Adams, on State highway No. 9, between the cities of Pekin and Morton in Tazewell county; that plaintiff’s intestate, Prank W. Blumb, was walking along said highway in a westerly direction and was in the exercise of due care and caution for his own safety; that the defendant Ben Getz carelessly, wrongfully and negligently suffered and permitted said automobile to run against intestate and knock him down upon the highway, causing- fatal injuries, from which he died on December 2, 1933.

The second count alleges that plaintiff’s intestate was walking on said public highway with due care and caution for his own safety and stopped to pick up his glove, which he had dropped on said highway, when Ben Getz, in his own behalf and as the agent of the defendant Boss C. Adams; then and there approached plaintiff’s intestate and negligently, carelessly and unlawfully failed to give reasonable warning or stop his automobile before striking said intestate and failed to use every reasonable precaution to avoid injuring him, but approached so rapidly that he was'unable to remove himself from the path of the automobile driven by defendant Ben Getz, contrary to sec. 40 of the Illinois Motor Vehicle Act, Cahill’s Ill. St. 1933, ch. 95a, If 41; that as a result of said negligence plaintiff’s intestate was struck and fatally injured.

The defendants Ben Getz and Boss C. Adams answered and denied each and all of the allegations of the complaint, and alleged that the death of intestate was due to his own carelessness and negligence. At the conclusion of the plaintiff’s case, upon her motion, Boss C. Adams was dismissed as a party defendant, leaving Ben Getz as the sole party defendant.

It appears from the testimony that the accident which resulted in the death of plaintiff’s intestate took place on State highway No. 9, a hard-surfaced road extending in an easterly and westerly direction between the cities of Pekin and Morton, Illinois, of 18 feet in width, with dirt shoulders 6 feet in width on each side thereof.

The road ran in an almost straight line so that a person driving an automobile could see anything ahead and so, aléo, could a pedestrian on the road observe the approach of an automobile. The home of John W. Nord, a brother-in-law of Frank W. Blumb, the deceased, was located on the north side of route 9. On the day of the accident Blumb and Nord left the latter’s house to go hunting. They proceeded in an easterly direction upon said highway and on the north side of the pavement. The sun was shining brightly, the atmosphere was clear and the pavement was dry. Nord and Blumb stopped temporarily while the latter was putting shells in his belt. He took out of his pocket a package of cigarettes, lighted one, and they then continued along the highway. Blumb discovered, after they had proceeded about 200 feet, that he had dropped one of his gloves at the place where he had lighted his. cigarette. He turned and retraced his steps in order to recover it. From Nord’s testimony it appears that when the deceased started back, he was walking on the shoulder of the highway adjacent to and north of the hard surface reserved for automobiles. Nord proceeded along the highway and the automobile, driven by Getz, passed him going in a westerly direction at a speed, according to Nord, of 50 miles per hour. The witness testified that he walked on about 40 feet farther after the car passed him; that he turned around and saw the car swaying to the right and left across the black fine in the center of the road, and that he then saw a dark object lying about the middle of the road which he found, upon returning, to be the body of the deceased. When Nord turned around he was approximately 450 feet east of the body.

■ Raymond Strubhar, a witness called on behalf of the plaintiff, testified that he was about 200 feet from the highway where the accident happened, when he saw Blumb, the deceased, take two or three steps southwesterly across the highway and then saw him bend over; that at the time the deceased was bending over he was about two feet north of the black line and that at that time, the automobile was a distance of 20 or 25 feet away. Both of these witnesses testified that they heard no horn or warning signal prior to the accident and that the automobile was traveling at a speed of 50 miles per hour. Strubhar further testified that after the car struck the deceased it “slid” his body about 12 feet and then proceeded about 100 feet further before it stopped; that just prior to the time it struck the deceased it was swerving across the road toward the south. .

It can be gathered from the testimony that there was very little traffic upon this highway at the time of the accident and that the car driven by the defendant was the only one that was actually proceeding over and along this highway, although an automobile driven by one Williams was proceeding in an easterly direction but was, at the time, west of the intersection of State routes 9 and 24. It is evident that this driver came up after the accident had happened.

In reviewing the record, the Supreme Court held that there was evidence from the rate of speed the car of the defendant, was being driven, together with the fact that no warning signals were given according to the evidence most favorable to the plaintiff, which might tend to show negligence on the part of the defendant and that the question of due care cannot always be shown by direct proof, but that the evidence as introduced by the plaintiff should disclose facts from which it may be reasonably inferred that the plaintiff’s intestate was in the exercise of due care; that the presence of the deceased upon the highway as a pedestrian was not negligence per se; that pedestrians and automobile drivers both have a right to the use of the highway and hold mutual obligations and reciprocal rights toward each other; that “the jury might take into consideration in its deliberations the fact, if it was a fact, that the pedestrian may have observed the coming automobile and believed that if it observed the speed law he would have ample opportunity, with safety, to step into the highway for the purpose of retrieving the glove which ho had dropped. If the automobile was far enough away at the time to have justified a person in .the exercise of ordinary care to have acted as the plaintiff did, it would not necessarily indicate such a lack of care on the part of the plaintiff as would amount, in law, to negligence. The question of contributory negligence is one which is preeminently a fact for the consideration of a jury”; that unless it can be said that the action of a person is clearly and palpably negligent, it is not within the power of the court to substitute its judgment for that of a jury which is provided for the purpose of deciding this as well as other questions in the case. It was further held that sec. 78 of the Uniform Act regulating traffic on highways (Ill. State Bar Stats. 1935, ch. 121, p. 2796; Jones Ill. Stats. Ann. 85.207) placing the duty on a pedestrian when using a highway to keep on the left of the paved portion or on the left shoulder of the highway did not, under all circumstances, show negligence per se on the part of one violating this enactment.

The jury by their verdict found in favor of the plaintiff on both issues of fact as to negligence and contributory negligence. From a consideration of the whole of the evidence, we are constrained to hold that the verdict of the jury was not contrary to the manifest weight of the evidence.

One of the alleged grounds of error assigned concerned the testimony of the codefendant, Boss C. Adams, receiver of certain insolvent banks, who was examined by plaintiff under sec. 60 of the Practice Act, Ill. Bev. Stat. 1937, ch. 110; Jones Ill. Stats. Ann. 104.060, and by whom defendant Getz was employed at the time the cause of action against defendant Getz accrued. This testimony concerned the alleged agency relationship between the two defendants, wherein, the examination of the witness was limited to the question of agency and did not involve the question of negligence or contributory negligence or the facts and circumstances surrounding the injury and death of plaintiff’s intestate. At the conclusion of plaintiff’s testimony the suit was dismissed as to defendant Boss C. Adams, and an examination of this evidence discloses nothing prejudicial to the interest of defendant Getz. The fact that defendant Getz drove the car on the day in question was not controverted in any evidence offered or admitted on behalf of either party to this suit.

It is further contended by defendant, who had been called and examined by plaintiff under sec. 60 of the Civil Practice Act (Ill. Rev. Stat. 1937, ch. 110, § 188; Jones Ill. Stats. Ann. 104.060) that the court erred in refusing to permit defendant’s counsel to cross-examine him concerning the surrounding facts and circumstances of the injuries and death of deceased, including the manner and degree of care in which the car was driven by him at that time. The trial court properly held that the examination had been confined to the question of agency as between the codefendants, and no proof of facts or occurrences connected with the injury or death or on the issues of due care or negligence having been made from the defendant’s testimony, the bar of the statute against his evidence (secs. 1 and 2, ch. 51, Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 107.067, 107.068) was not lifted and the cross-examination was properly confined to the scope and subject matter of the direct examination. Combs v. Younge, 281 Ill. App. 339; Garrus v. Davis, 234 Ill. 326, 84 N. E. 924; Van Meter v. Goldfarb, 317 Ill. 620, 148 N. E. 391.

In the case of Garrus v. Davis, supra (p. 331) the Supreme Court said: “We do not understand and construe the statute to have been intended to mean that if in such case the witness is called by the adverse party to testify as to one thing or upon one matter, the disqualification against his testifying of his own motion and in his own behalf is waived or removed and that he is thereby rendered competent to testify upon all issues in the case. To so construe the statute would be in a measure to defeat its objects.”

Appellant insists that it was reversible error to permit plaintiff to testify concerning the physical condition of the deceased prior to the time of his injury and death. No evidence was offered concerning his habits or otherwise affecting the issues of due care or negligence nor was plaintiff an occurrence witness, hence we deem this assignment of alleged prejudicial error to be without foundation.

From an examination of the abstract and record, we find no prejudicial or reversible error appearing in the rulings of the court upon the evidence or in remarks or arguments of counsel for appellee.

Reversible error is further assigned in the refusal of the court to give certain instructions on behalf of the defendant. Twenty-four instructions were given in addition to that as to the form of the verdict on behalf of the defendant, many of great length and some repeating principles of law embodied in other instructions. Three were given on behalf of the plaintiff. The instructions of the court fully covered the rules of law upon which the defense was predicated, insofar as the same was based on the evidence. Many of the 24 additional instructions which were refused were either repeated rules of law or were palpably erroneous or inapplicable to the facts in the case. In appellant’s argument only four of the refused instructions are ' discussed, being numbered one, two, six and ten.

The refusal to give instruction number six was especially stressed as reversible error in appellant’s brief and argument. This instruction undertakes to instruct the jury that if the defendant “was suddenly confronted by sudden emergency at the time and place alleged,” then the obligation of the defendant to use due care and caution was such care and caution as was commensurate with the “emergency then and there confronting him. ’ ’ The instruction did not cover care of the defendant immediately prior to or when going into the dangerous place, but only his care after he had arrived there, and was therefore properly refused by the trial court. Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544, 90 N. E. 266; North Chicago St. R. Co. v. Cossar, 203 Ill. 608, 613, 68 N. E. 88; Chicago, M. & St. P. Ry. Co. v. Halsey, 133 Ill. 248, 254, 23 N. E. 1028; Franz v. St. Louis, S. & P. R. Co., 219 Ill. App. 558. In Chicago, M. & St. P. Ry. Co. v. Halsey, supra, the rule was stated, which was cited with approval in the subsequent decisions. In personal injury eases it has been repeatedly held 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.

An instruction must not limit the exercise of care and caution of the party to the time when he was in danger, regardless of his conduct in putting himself in that position. Chicago, M. & St. P. Ry. Co. v. Halsey and citations, supra.

Instructions one and two, which singled out certain facts or assumed facts in evidence, insofar as they are applicable herein, are covered in principle by other given instructions including 16, 19 and 26; number 10 is an argument covered in principle by number 24. In determining the sufficiency of instructions, the court will consider them as a series. Reivitz v. Chicago Rapid Transit Co., 327 Ill. 207, 158 N. E. 380; River Park Dist. v. Brand, 327 Ill. 294, 158 N. E. 687; People’s Nat. Bank of Monmouth v. Fernald, 252 Ill. App. 5. We are of the opinion that no prejudicial or reversible error appears in the ruling of the trial court on the instructions.

This court has examined and considered all other assignments of error and finds no reversible error in the record. The judgment of the circuit court of Tazewell county will therefore be affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Stone

text:
    Opal Burke, Appellee, v. Weston Molloy, Appellant.

      Opinion filed March 9, 1938.
    J. P. Streuber, of Alton, for appellant.
    Green, Verlie & Hoagland, of Alton, for appellee; J. F. Schlafly, Jr., of Alton, of counsel.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

In the early morning of June 8, 1935, plaintiff appellee, hereinafter called plaintiff, and defendant appellant, hereinafter called defendant, were returning from a dance at Benld, Illinois, to their home in Alton, Illinois. There were with plaintiff and defendant Jean Schaffer and Leland Kennedy. They were all riding in defendant’s car and were there as the invited guests of defendant. On the way home defendant was driving his car at various rates of speed described by the different witnesses at 50, 55 and 60 miles an hour. He was racing in some instances and passed other cars going in the same direction. This was on route 112 which goes south from the city of Bunker Hill to the junction with State route 140. Defendant was admonished on several different occasions to drive more carefully and not so rapidly. At one of these admonitions from plaintiff, defendant took offense after which he and plaintiff spoke no more to each other. The junction of 112 with route 140 is about six or seven miles south of Bunker Hill. For the most part the road is straight and level. Near the junction are several different signs of warning that there is such a junction ahead. Some distance, maybe a thousand feet to a quarter of a mile north of this intersection was a diagonally shaped sign on the right-hand side of the road bearing.the words “Danger, Stop-sign Ahead.” Farther towards the intersection on the same side of the road was a white colored sign bearing the words “Stop-sign Ahead, Junction 140,” while a few feet from the intersection on the same side of the road there was a sign bearing the word “Stop.” The original exhibits of the first two of these signs are in the record, certified to this court.

The evidence tends to show that defendant paid no attention to the warnings, and even passed at least one car at a rapid rate of speed, almost immediately before he came to the junction. At the junction itself is a very large sign calling attention to the fact that said junction is there. Defendant did not slow down or stop his car as he approached the junction, but on the contrary crashed on across route 140 where route 112 ends. Serious damages followed among which were many and serious injuries to plaintiff, which are detailed by the evidence.

Suit was commenced November 26,1935, by plaintiff' against defendant in the city court of Alton, and in the complaint in said suit it was charged that the defendant invited the plaintiff as a guest on the automobile trip; that he had sole and exclusive management, control and operation of his automobile; that he drove recklessly and wantonly at a high rate of speed, more than 60 miles an hour. The complaint also alleges disregard of the warnings of the stop signs along the road, which were close to the intersection of the two routes. It also alleges remonstrances of the plaintiff and request by her to drive more slowly. Defendant’s answer was a specific denial of all of the allegations of the complaint. After verdict defendant asked leave to amend his answer and to set up therein that the plaintiff was guilty of wilful and wanton failure to exercise care for her own safety, which contributed to her injury. This leave was denied to defendant.

The jury returned a verdict for plaintiff, assessing her damages at the sum of $5,000. Motion for new trial was denied by the trial court and judgment rendered on the verdict.

Defendant appeals to this court and assigns as error that the court should have directed a verdict for defendant at the close of plaintiff’s case, and again at the close of all evidence, erroneous rulings on the admission of evidence, the giving and refusing of instructions, prejudicial conduct of the court bailiff towards counsel for the defendant, the refusal of the court to allow the amendment to defendant’s answer; that the verdict is against the manifest weight of the evidence and that the court erred in not granting defendant a new trial.

The court did not err in refusing leave to defendant to amend his answer. It is true that our present statute of amendments is a liberal one. However, it recites that amendments may be made oh terms that are just and reasonable. This offered amendment in our judgment was not reasonable. Anything. which impelled defendant to wish this amendment was just as well known to him before verdict as it was after verdict. The amendment if allowed could not possibly have changed the verdict, which was already in. The most that it could have done would have been to persuade the court that new trial should be granted, and one cannot save matters proper to be offered in evidence, — matters which are within his knowledge when it is the proper time to offer evidence, and then after verdict seek to malee amendments which would make proper such evidence which he had the opportunity to offer and did not. Again, the offer of this amendment came unreasonably late. Its effect would have been to confuse rather than to assist in the determination of this case. Furthermore, the court had before it all the evidence and probably saw that there was nothing in the conduct of the plaintiff which would at all tend to prove these allegations had they been allowed. The evidence shows that plaintiff as a guest of the defendant remonstrated with him time and again to cease his reckless driving. What more could she have done to insure her own safety and what conduct was she guilty of that would warrant charging her with contributory, wanton and wilful conduct?

As to the motion for judgment non obstante veredicto, we find no such motion in this record, notwithstanding the assignment of error on the ruling on such motion.

As to the motions for directed verdict, they could not have been allowed unless the evidence taken with all its reasonable intendments did not reasonably tend to show defendant’s guilt. Certainly that could not be said of the evidence in this case. The trial court was of the opinion that the evidence did tend to show defendant’s guilt. It was backed up in that opinion by the actual finding of the jury that the defendant was guilty as charged. While the finding of a jury is not always a perfect criterion, in most instances it does corroborate the court in his judgment that there is evidence which tends to prove the issue. Juries do not ordinarily find verdicts where there is no evidence tending to justify that finding. It was not error to deny the motions for peremptory instructions at the close of plaintiff’s evidence and at the close of all the evidence.

Defendant insists that it was error for the court to give the following instruction:

“The court instructs the jury that if you believe from the preponderance of the evidence that the defendant Molloy in the operation of his automobile at the time of and immediately prior to the accident, exhibited such an absence of care for the safety of others, including the plaintiff, as amounted to a conscious indifference to the consequences of his conduct, you may conclude that the defendant’s misconduct was willful and wanton.

‘1 The Court further instructs the jury that the question of plaintiff’s contributory negligence, if any, is immaterial in this case, and that said contributory negligence, if proved, would not be a defense to this lawsuit. ’ ’ He claims that by this instruction the jury were definitely told that the defendant was guilty of misconduct. We cannot agree with that contention. The instruction merely says that if the defendant at the time of and immediately prior to the accident exhibited such an absence of care for the safety of others, including the plaintiff, as amounted to a conscious indifference to the consequences of his conduct, it may conclude that the defendant’s misconduct was wilful and wanton. That language merely repeats to the jury the definition of what is wilful and wanton. The word “misconduct” reverts back to an absence of care for the safety of others which amounted to a conscious indifference to the consequences of his conduct. The jury is told by that that if the defendant was guilty of such disregard for the safety of others, then it would be misconduct of a character which the law defines as wanton and wilful. Mot only is this true, but the conduct or misconduct of the defendant in driving his car is shown in the record and is undisputed, so that if this instruction were subject to the first criticism, it would still be a proper instruction; for it is not error to assume a conceded or undisputed fact established by the evidence. (Fisher v. Bennehoff, 121 Ill. 426; Town of Normal v. Bright, 223 Ill. 99; Illinois Cent. R. Co. v. King, 179 Ill. 91; Grannon v. Donk Bros. Coal Coke Co., 259 Ill. 350.)

As to the last paragraph of the instruction, such a general instruction only becomes material when it is calculated to confuse and mislead the jury. We are unable to see how the giving of this part of the instruction in the language in which it was given could do that.

Complaint is made by the defendant that the court erred in refusing certain proffered testimony and in allowing the exhibits in question to be admitted in evidence. The testimony complained of and refused was to the effect that plaintiff had on other and different occasions ridden with defendant and knew that he was in the habit of driving Ms car at the rate of speed at which he was driving that night. Assume that this is true, there is no proof in this record that plaintiff had any reason to suspect that defendant would drive his car at the rate of speed he did under the conditions in which he did so drive it. It is not necessarily dangerous to drive a car 50 or 60 miles an hour on a public highway under proper conditions, but it is exceedingly dangerous to drive it at that rate of speed and to be passing cars and racing with other cars under conditions which make such conduct extremely hazardous. The proof of the former does not prove the latter, and did not in our judgment put plaintiff on notice that defendant was liable to be guilty of the conduct described by the evidence in this case. We think it was not error to refuse that testimony.

As to the exhibits, the evidence shows that they properly depict the surrounding circumstances where the incidents detailed by the evidence occurred and that testimony must be followed because it is uncontradicted. The mere statement that the pictures were taken too big not borne out by any testimony in the case cannot be considered as an argument against the definite testimony that they do properly show the surroundings.

As to the misconduct of the bailiff, it is the duty of the trial court to see that prejudice or misconduct does not enter into a record on a trial, but the trial court cannot do that unless he has the assistance of counsel. It is the duty of counsel, therefore, to apprise the court at the first opportunity of any misconduct he complains of. Otherwise that court has no opportunity to correct an error if an error has intervened. Counsel cannot speculate in the trial of a case. If in this case defendant felt that he had been prejudiced by the conduct it should have been called to the attention of the court at the first instance and give the court the opportunity to act upon it in a manner that it justified, but it cannot be left until after verdict and then assigned as something which the court should have done which he did not do and did not know about, and, therefore, had no opportunity to correct.

On a consideration of this whole record we are of the opinion that it presented a question of fact for the jury and that no error or prejudice entered into the trial which would effect the jury in arriving, at its verdict. The jury found the facts and the issues for the plaintiff. We see no reason for disturbing that finding.

The judgment of the city court is affirmed.

Judgment affirmed.