McMurray v. Peoria Railway Terminal Co., 208 Ill. App. 488 (1917)

Aug. 7, 1917 · Illinois Appellate Court · Gen. No. 6,463
208 Ill. App. 488
Walter J. McMurray, Appellee, v. Peoria Railway Terminal Company, Appellant

Walter J. McMurray, Appellee, v. Peoria Railway Terminal Company, Appellant.

Gen. No. 6,463.

(Not to be reported in full.)

Abstract of the Decision.

1. Railroads,. § 599*—when evidence shows giving of signal by crossing flagman to proceed, causing collision. Evidence held sufficient to warrant the finding that defendant's crossing flagman signaled the train of another railroad on which plaintiff was employed as bralceman to come on, as a result of which a collision occurred at the crossing and plaintiff was injured.

2. Appeal akd error, •§ 1000*—when question of admissibility of evidence will not be reviewed. Where neither the abstract nor the record showed an offer of evidence urged on appeal as having been made and refused or that the matter was brought to the attention of the court by question or otherwise or that the court ruled upon it, held that the question involved in such evidence was not presented for review.

Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Greek, Judge, presiding. Heard in this court at the April term, 1917.

Affirmed.

Opinion filed August 7, 1917.

Statement of the Case.

Action by Walter J. McMurray, plaintiff, against Peoria Railway Terminal Company, defendant, to recover damages for personal injuries. From a judgment for plaintiff for $1,500, on remittitur, defendant appeals.

Jack, Irwin & Jack, for appellant.

Weil & Bartley, for appellee.

Mr. Justice Niehaus

delivered the opinion of the court.

*4893. Railroads—when instruction on right of recovery for negligence of railroad company colliding with train of another is correct? In an action by a brakeman of one railroad company against another railroad company to recover for injuries received in a collision at a railroad crossing, an instruction to the effect that if the jury believed from the evidence that plaintiff was exercising due care for his own safety and defendant was negligent, plaintiff would have a right to recover damages to the extent sustained, held to be proper notwithstanding it did not include also the statement that defendant Would not be liable if plaintiff’s employer at the time was negligent, or equally negligent, or contributed to the accident, as that was matter of defense.

4. Damages, § 211 * —when instruction on prospective is correct. An instruction concerning prospective damages, held proper as given where there was evidence of consequences following plaintiff’s injuries, of weakness of sight of an injured eye, of continued trouble with one wrist following the injury, and of intermittent headaches continuing after injury.