Appeal from the Circuit Court of Cook county; the Hon. FRANK
BICEK, Judge, presiding. Affirmed.
PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Judgment for $5,500 in favor of the plaintiff based upon a jury's verdict was entered in the Circuit Court of Cook County. The suit was brought to recover damages sustained by plaintiff while boarding a streetcar owned and operated by the defendant. From this judgment the defendant appeals on the theory that it was not guilty of any negligence and that the sole and proximate cause of plaintiff's injuries was his negligence in attempting to board a moving streetcar.
The evidence on behalf of the plaintiff was to the effect that at the intersection of Madison street and Cicero avenue, in Chicago, Illinois, he attempted to board a northbound Cicero avenue streetcar; that the streetcar ordinarily stopped with the rear end 50 feet south of the south curb line of Madison street and that on the day of the accident, because automobiles were standing at the intersection, the streetcar had stopped 20 feet south of its ordinary stopping place; that a number of people at the time were attempting to board the car, the last of whom was the plaintiff; that he had placed one foot on the top of the platform and the other on the step, holding the handle with his right hand, when the streetcar started, throwing him so that his left shoulder hit the pavement; that at the time he fell from the car he was about 60 or 75 feet south of the stop and go signal; that the car had moved about 5 feet from the time it started, and had stopped with the front of the car south of Madison street.
The evidence on the part of the defendant indicates that the streetcar had stopped at its usual stopping place with the front end at the building line of Madison street; that the streetcar was 50 feet long; that it had started and had moved some distance when the plaintiff attempted to board the moving streetcar and fell and was injured; that the streetcar stopped in the intersection.
The first contention urged by the defendant is that the verdict is against the manifest weight of the evidence.
When the case was submitted to the jury the defendant offered a special interrogatory, which was submitted by the trial court to the jury together with the forms for a general verdict. The interrogatory was: "Did the plaintiff board the streetcar at the time and place in question while it was in motion?" The jury at the time it returned a general verdict in favor of the plaintiff finding his damages at $5,500, answered the interrogatory "no." In the motion for new trial the defendant alleges that "the verdict is contrary to and against the manifest weight of the evidence." No reference is made to the special interrogatory. The question before the jury in the trial court was whether or not the defendant through its negligence in starting the car at the time when the plaintiff was attempting to board it caused the alleged damage. The theory of the defendant was that the plaintiff was injured because he attempted to board a moving car. Consequently if the jury found that at the time of the accident plaintiff was not attempting to board a moving car, on the evidence in the record they could render no other verdict than the one which they returned. The answer to the special interrogatory is consistent with the general verdict and substantially conclusive of the issues in the case. In Voigt v. Anglo-American Provision Co., 104 Ill. App. 423, the Appellate Court held that the assigned error in the motion for new trial that the verdict was against the manifest weight of the evidence applied only to the general verdict and did not include an objection to the special findings, and that, in the Appellate Court, under such circumstances the special findings must be considered to stand as fully sustained by the evidence. The Supreme Court affirmed the Appellate Court (Voigt v. Anglo-American Provision Co., 202 Ill. 462), saying:
"It is, of course, the bounden duty of the Appellate Courts to consider questions of fact properly presented and to correct errors of fact committed by the trial courts. . . . Where, however, it is alleged that the trial court erred in overruling the motion for a new trial, based on the ground that the verdict was against the weight of the evidence, the Appellate Court is the only tribunal that can correct the error, if any has been committed, and the aggrieved party has the undoubted right to have the decision of that court on the question. . . . But in the case at bar we do not understand, even from the language of the opinion filed, that the Appellate Court regarded the decision below as conclusive of the facts, but only that the objection that the verdict was against the weight of the evidence applied only to the general verdict, and not to the answers of the jury to the special interrogatories submitted to be answered, as this court has already held, (Avery v. Moore, 133 Ill. 74; Pennsylvania Coal Co v. Kelly, 156 Ill. 9; Empire Machinery Co. v. Brady, 164 Ill. 58;) and that the special findings, not having been mentioned as a ground for a new trial, could not be assigned as error in the Appellate Court, and that, such findings being unquestioned and substantially conclusive of the facts upon which the question of liability depended, the judgment could not, on the alleged error, be reversed."
See also Weinrob v. Heintz, 346 Ill. App. 30; Brant v. Chicago & Alton R. Co., 294 Ill. 606; Brimie v. Belden Mfg. Co., 287 Ill. 11. Under these holdings, since no objection in the instant case was made to the special findings in the motion for new trial, the question as to whether or not the verdict of the jury was against the manifest weight of the evidence is not before us.
The defendant makes certain procedural objections which we will consider.
In the trial it was admitted that the plaintiff fell to the ground from a streetcar and was injured. The only disputed question of fact was as to whether he was injured while attempting to board a moving car or while boarding a standing car which started up before he had a chance to reach the platform. There was conflict in the testimony as to where the streetcar stopped.
The defendant complains that the plaintiff attempted to impeach, on immaterial matters, witnesses proffered by it. One Lyons, a witness proffered by the defendant, testified on direct examination that the streetcar had stopped at Madison street and that he knew approximately where the streetcar had stopped; that the streetcar had moved about 60 feet before the time when the witness, who was on the rear platform of the streetcar, first saw the plaintiff, at which time he was attempting to board the streetcar at a running gait; that the streetcar stopped in the intersection with its rear about 10 to 15 feet past the south curb of Madison street. On cross-examination plaintiff's counsel asked the witness as to whether there was an alley running east and west south of Madison street, to which the witness answered that he was not sure. Counsel then asked the witness as to whether on a previous trial of the case he had stated that the streetcar was stopped alongside a building which probably went back to the alley and that the distance from the alley to the corner was 100 or 125 feet, to all of which questions the defendant objected on the ground that they were not contradictory of the witness's instant testimony. The witness stated that he had made those answers. He then testified that when he saw the plaintiff, the latter was running. The plaintiff's counsel asked him as to whether on the previous trial of the case he was asked the question "Could you tell whether he was walking or running?" and if he answered it "No, I couldn't say that." To this question there was no objection, and the witness, after looking at a picture, stated that he recalled that there was an alley there, that the rear end of the streetcar, when it was first stopped, was about halfway from the corner to the alley, and that the rear end was about 50 to 55 feet south of the corner or about halfway from the alley to the corner. Counsel strenuously contends that the attempted impeachment was improper because the witness had stated that he was not absolutely sure there was an alley there, and that any attempted impeachment on the question as to whether an alley was there or not was on an immaterial matter. However, the matter involved was the position of the car at the time it stopped. The witness had testified on his direct examination that the streetcar, before the plaintiff attempted to board it, had proceeded about 60 feet and at the time when the streetcar had stopped after the accident its rear end was 10 to 15 feet south of the south curb of Madison street, which would have placed the rear end of the streetcar, at the time when it first stopped, 70 to 75 feet south of the south curb of Madison street. The evidence given by the witness at the first trial was that at the time when the streetcar first stopped the rear end was about halfway from the alley to the corner and that the distance from the alley to the corner was about 100 to 125 feet, which would place the rear end of the streetcar 50 to 60 feet south of the corner, and at the conclusion of his cross-examination the witness stated that when the streetcar first came to a stop the rear end was 50 to 55 feet south of the corner. The questions asked the witness with reference to his previous testimony were proper and were not on an immaterial matter, and in any case were not harmful to the defendant as the final testimony of the witness was in favor of the defendant's position that the front of the streetcar when it had stopped was at the south curb line of Madison street.
On plaintiff's cross-examination of Ryan, the conductor of the streetcar and a witness for the defendant, the following occurred, after the witness had stated "When I first saw him (plaintiff), maybe he had run two or three feet":
"Mr. Reiff (counsel for plaintiff): Q. What?
"A. Two or three feet when I ...