Opinion
Opinion filed February 12, 1930.
1. PLEADING — pleading general issue after demurrers are overruled. A defendant by pleading the general issue after demurrers to the declaration have been overruled waives error in overruling the demurrers.
2. APPEAL AND ERROR — insufficiency of declaration to support judgment. The question of the insufficiency of the declaration to support the judgment may be raised in the Appellate Court by proper assignment of error even though demurrers to the declaration had been overruled.
3. PLEADING — legal sufficiency of declaration. The question of the legal sufficiency of a declaration is not raised by a motion for a directed verdict.
4. NEGLIGENCE — facts not authorizing directing verdict of not guilty. In an action for injury alleged to have resulted from defendant's negligence, where it appeared that defendant operated a coal mine on the outskirts of a city and at times set railroad cars at the tipple by means of a steel cable winding on a drum and crossing a street, and that the drum was operated by steam from engine boilers and controlled by a man operating a lever, and the cable was only on the street when a car was to be moved, and that plaintiff while walking on the street when the cable was across it was struck by the cable and injured; and there was evidence that the accident occurred at a time when people were likely to be passing upon the street and that there was much steam escaping causing noise and obscuring the view, it was held that the questions of negligence and contributory negligence were for the jury and that the court was not in error in refusing to direct a verdict of not guilty.
5. APPEAL AND ERROR — question not properly preserved in abstract of evidence. Where in the abstract of the evidence the question as to whether the trial court erred in its rulings upon the admission of evidence is not properly preserved, the Appellate Court cannot consider such question.
6. INSTRUCTIONS — not misleading. The following instruction: "The court instructs the jury that in reading these instructions to you the court does not intend to even intimate what in the judgment of the court your verdict should be," is proper and not misleading.
7. INSTRUCTIONS — instructions refused covered by instructions given. It is not error to refuse to give requested instructions when, in so far as they are correct statements of the law, they are fully covered by instructions given.
8. APPEAL AND ERROR — question of variances not raised in trial court. If a question of variance between the proof and averments in the declaration is not raised in the trial court it cannot be considered by the Appellate Court.
9. APPEAL AND ERROR — no argument sustaining assignment of error. An assignment of error to the effect that the judgment is excessive is not sustained where the only statement in the appellant's brief and argument is that "the judgment was excessive."
Appeal from the Circuit Court of Franklin county; the Hon. JULIUS C. KERN, Judge, presiding.
ANGERSTEIN ANGERSTEIN and W. JOE HILL, for appellant.
A.C. LEWIS and Roy C. MARTIN, for appellee.
Appellant operates a coal mine in the outskirts of West Frankfort immediately west of Taft Street. That street is 20 feet wide and, near the mine, is crossed by five railroad tracks. At times appellant sets railroad cars at the tipple by means of a steel cable which winds on a drum and crosses the street, twice, at different places. The drum is operated by steam from the engine boilers and is controlled by a man in charge who operates a lever. The cable is only in the street when a car is to be moved.
On December 15, 1927, appellee was walking south on Taft Street and was struck by the cable and thrown upon the ground with great force. She sued and recovered a verdict for $6,000 and on a motion for a new trial, remitted $2,000, and a judgment for $4,000 was entered in her favor.
Appellant contends that the court erred in overruling special demurrers to the amended additional counts. After the demurrers were overruled, appellant filed the general issue and the law is well settled that by pleading over it waived the ruling of the court. If appellant thought the declaration was so defective that it would not support the judgment, that question could have been presented to this court by a proper assignment of error even though the demurrers were overruled. Chicago, R.I., P. Ry. Co. v. People, 217 Ill. 164-172; Tykalowicz v. Metropolitan Life Ins. Co., 249 Ill. App. 280. No such error has been assigned. The legal sufficiency of a declaration is not raised by a motion for directed verdict. Swift Co. v. Rutkowski, 182 Ill. 18; Klofski v. Railroad Supply Co., 235 Ill. 146.
It is argued that the court erred in refusing to direct a verdict of not guilty. Appellant had placed the cable across the street and was using it at a time when there was much steam and noise and when people were likely to be passing upon the street. The man in charge of the drum testified that there was a lot of steam escaping and although he was within 10 feet of the street he did not see the accident because of the steam. Other witnesses testified as to the steam, the noise from its escape and from the running of the engine. Appellant offered some evidence tending to show that an attempt was made to warn appellee, but it is quite apparent that if any warning was given it was not heard or seen. In the state of the proof, the questions of negligence and contributory negligence were questions of fact for the jury and we would not be warranted in setting aside the verdict.
It is argued that the court erred in its rulings upon the admission of the testimony of Dr. Williams; that the doctor examined appellee more than a year after the accident solely for the purpose of testifying at the trial; that the hypothetical question did not embody material, undisputed facts and included subjective facts. The abstract shows that during the taking of the doctor's testimony five objections were made and that the rulings and exceptions were as follows: "Objection overruled. Exceptions by defendant." "Objection overruled." "Objection overruled. Exception." "Motion to strike overruled. Exception." "Objection overruled. Exception." In this state of the abstract the question as to whether the court erred in its rulings is not properly preserved and is not open for our consideration; Dickhut v. Durrell, 11 Ill. 72; Dufield v. Cross, 13 Ill. 699; Arcade Co. v. Allen, 51 Ill. App. 305; Baker v. Newbury, 63 Ill. App. 405; Schanzenbach v. Brough, 58 Ill. App. 526; Lewinsohn v. Stevens, 70 Ill. App. 307.
It is argued that the court erred in giving to the jury the following instruction: "The Court instructs the jury that in reading these instructions to you the Court does not intend to even intimate what in the judgment of the Court your verdict should be." That was the only instruction given on behalf of appellee. It was a proper instruction and could not in any way mislead the jury. It is argued that the court erred in refusing appellant's six refused instructions. The court gave the jury 23 instructions on behalf of appellant, which fully covered every phase of the case. On such a simple issue the court should not have been called upon to pass upon 29 instructions. In so far as the refused instructions were correct statements of the law they were fully covered by the given instructions.
It is argued that there was a variance between the proof and the averments of the declaration. That point was not raised in the trial court and cannot be considered. Appellant assigned error to the effect that the judgment is excessive. The only statement found in appellant's brief and argument in regard to that matter is as follows: "The judgment was excessive." No argument is presented to the effect that appellee's injuries were not of such a character as would warrant a verdict and judgment for $4,000. No reversible error having been pointed out, the judgment is affirmed.
Affirmed.