Pennington v. Illinois Central Railroad, 160 Ill. App. 128 (1911)

March 16, 1911 · Illinois Appellate Court · Gen. No. 15,525

160 Ill. App. 128

Albert S. C. Pennington, Appellee, v. Illinois Central Railroad Company, Appellant.

Gen. No. 15,525.

1. Evidence—What part of res gestae. The statements of the keeper of a turn-stile that a ticket presented was as he understood it good, accompanying the act of unlocking the turn-stile, is competent as a part of the res gestae.

2. Verdicts—when not excessive. Held, that a verdict for $4,500 in an action on the case for personal injuries was not excessive where it appeared that the plaintiff was ejected from a railroad train on a cold night and before finding shelter had his ears, fingers and feet frozen and upon reaching home was taken sick and suffered a long and serious illness from which he was not entirely recovered fourteen years after the occurrence.

Action in case. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in this court at the March term, 1909.

'Affirmed.

Opinion filed March 16, 1911.

Calhoun, Lyford & Sheean, for appellant; John G. Drennan, of counsel.

John C. Trainor, for appellee.

Mr. Justice Smith

delivered the opinion of the court.

A judgment of $4,500 was entered in this case in favor of the appellee against the appellant, from which it appeals.

The case has been tried several times and has been twice, before in this court, reported in 69 Ill. App. 628, and 131 Ill. App. 622, wherein the facts are set forth substantially the same as here presented, and not necessary to be restated, with perhaps the one exception that the trial court last hearing, the case permitted, over the appellant’s objection, the appellee to testify that on the presentation of the ticket to the agent she said to him, “The ticket is good, it is all right; it is good and all right as I understand.”

The appellant contends this testimony was the statement of one with no authority to bind the company, and was error. At the time of making the statement the ticket agent returned the ticket to the appellee and unlocked the turnstile through which he had to and did pass to reach the train. We think the testimony proper as a declaration accompanying an act as a part of the res gestae.

The complaint made to the instruction given on behalf of the appellee on the measure of damages we do not think tenable. The errors claimed because of the refusal of five instructions offered by appellant are principally in effect questioning the law heretofore announced controlling this case. We consider the law of this case as stated by the former decisions in the same, supra, conclusive on this court as well as on the trial court.

The appellant insists that the damages are excessive.

If the testimony given by and on behalf of appellee be true,—the jury so found and we see no reason to believe otherwise—the appellee was ejected on a cold night and before finding shelter his ears, fingers and feet were frozen. On reaching home the same night he was taken sick and suffered a long and serious illness, from which he had not entirely recovered at the time of the last trial, fourteen years after the occurrence. His prior good health and the details of his subsequent disabilities need not be recited; suffice it to say his damages were substantial, and we cannot say the amount allowed is excessive.

The judgment will be affirmed.

Affirmed.