Joliet, Aurora & Northern Railway Co. v. Velie

Citations

• 140 Ill. 59
• 29 N.E. 706
• 1892 Ill. LEXIS 1104

Syllabus

<p>1. Pbaotice—directing what the verdict shall be. It is error to instruct the jury, in an action for negligence and consequent injury, that if they believe, from the evidence, that the plaintiff was injured by the negligence of the defendant, as charged in .the declaration, and that the plaintiff was at the time in the exercise of ordinary care and prudence, the plaintiff is entitled to recover for such injury, if there is no conflict in the evidence, taken as a whole, if all the evidence on both sides does not tend to show a right of recovery.</p> <p>2. Where a defendant whose motion to exclude plaintiff’s evidence, made as soon as the plaintiff rests, is overruled, fails to stand by such motion, or to renew it when all the testimony is in, or to request that the jury be instructed to find for the defendant, but introduces testimony of his own to contradict the case made by the plaintiff, and requests that the jury be instructed to pass upon the issues involved, and to determine thereon according to the preponderance of the evidence, he thereby waives his right to object to the action of the court in overruling his motion, and is estopped from assigning it for error in a court of review.</p> <p>3. Where the defendant demurs to the plaintiff’s evidence, he will be held to admit not only all that the plaintiff’s testimony proves, but all that it tends to prove. He thereby admits all the conclusions of fact which a jury may fairly draw therefrom. Hence, if there is evidence tending to prove the issues in favor of the plaintiff, the judgment must be in his favor, and the motion to exclude must be overruled.</p> <p>4. A motion by the defendant to exclude the evidence operates as a demurrer to the plaintiff’s evidence.</p> <p>5. Where a defendant's demurrer to a declaration is overruled, he-may either stand by his demurrer and suffer judgment to go against him, trusting to the higher court to sustain his position, or he may plead to the declaration, and if he does the