West Chicago Street Railroad v. Feldstein , 169 Ill. 139 ( 1897 )

Mr. Justice Wilkin

delivered the opinion of the court:

It is first contended that the trial court erred in refusing to give a peremptory instruction to find for the defendant, counsel supposing that the instruction preserves the questions of law for the decision of this court as to whether there is any evidence in the record tending to support the plaintiff’s cause of action. We find the instruction was not asked at the close of plaintiff’s evidence nor at the close of all the evidence, but after the case had been argued and submitted to the jury the instruction was presented as one of a series asked by the defendant. As we said in Peirce v. Walters, 164 Ill. 560, (on p. 565): “If the defendants desired the court to pass upon the legal question as to whether or not there was any testimony before the jury tending to prove the plaintiff’s case, and to bring that question before this court for review as a question of law, they should have asked to have the case withdrawn from the jury before the final submission.” The case having been submitted to the jury upon the facts, defendant thereby conceded there was a question for their determination, and this peremptory instruction to find for the defendant, offered at this time, was an attempt to invade the province of the jury, and we think it was properly refused.

It is said by counsel for appellant that the injury sustained by the plaintiff in this case was not such a natural and approximate consequence of appellant’s negligence as to make it liable, as it was an injury “not known by common experience to be .usual in consequence, and the damage does not, according to the ordinary course of events, follow from the wrong.” Counsel seek to invoke the rule as laid down by Judge Cooley in his work on Torts, (p. 69,) which is as follows: “If the wrong and the resulting damage are not known by common experience to be naturally and usually in sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, then the wrong and the damage are not sufficiently conjoined or concatenated as cause and effect to support an action.” The correctness of this rule is not questioned, but we think counsel err in attempting to apply it here at this time. It has been repeatedly held by this court that whether or not the negligence of the defendant was the proximate cause of the injury is a question of fact, to be determined by the jury under proper instructions from the court. (Fent v. Toledo, Peoria and Warsaw Railway Co. 59 Ill. 349; Pullman Palace Car Co. v. Laack, 143 id. 242.) In other words, whether the wrong and the damages, as shown in this case, are known by common experience to be usual in consequence, and the damages follow from the wrong in the ordinary course of events, and are sufficiently conjoined and concatenated as cause and effect, is in this State a question of fact. The cases are so numerous that it is unnecessary to cite decisions of this court holding that the judgment of the Appellate Court conclusively settles all controverted questions of fact. In this case its judgment has conclusively determined the question of approximate cause adversely to the appellant. Furthermore, not only by reason of the judgment of the Appellate Court is the West Chicago Street Railroad Company estopped to urge questions of fact in this court, but it does not appear that the question as to whether the facts show that the injury was too remote to authorize a recovery was raised upon the trial below, as it should have been, by proper instructions. Therefore, not having been presented below, it cannot be urged here for the first time. Toledo, Peoria and Warsaw Railway Co. v. Pindar, 53 Ill. 447.

The last instruction referred to by counsel for appellant, relating to the plaintiff’s right of recovery against the defendant as one of two joint tort feasors, is, we think, entirely free from objection. Moreover, the jury were so fully and fairly instructed on behalf of appellant that no ground of complaint against the instructions given can be reasonably urged.

Finding no merit in this appeal the judgment of the Appellate Court is affirmed.

Judgment affirmed.