Mitchell v. Hindman

Citations

• 150 Ill. 538
• 37 N.E. 916

Syllabus

<p>1. Evidence — sustaining an objection to a question — afterwards answered. There is no error in sustaining an objection to a question, where the fact sought to be proved by it is afterwards shown by answer to another question to which no objection is made.</p> <p>2. Same — degree of proof required. An instruction in a civil action that the plaintiff was “bound to prove to the satisfaction of the jury, by a clear preponderance,” is clearly erroneous, and properly refused. The law only requires that a preponderance of evidence shall be in favor of the plaintiff.</p> <p>3. Instructions — as to the burden of proof. It is not necessary that the instructions for the plaintiff shall state where the burden of proof rests. It is sufficient if, from all the instructions given to the jury as the charge of the judge, it clearly appears, and is so stated to the jury, upon whom the burden rests. If one of the instructions for the defendant positively states on whom it rests, that will be sufficient.</p> <p>i. Same — as to preponderance of the evidence. An instruction that the preponderance of the evidence is not alone determined from the number of the witnesses testifying, but the jury should take into consideration the opportunities of the witnesses for seeing or ascertaining, from their own personal knowledge, the things about which they testify, and the probability or improbability of the truth of their statements, in view of all the other evidence, facts and circumstances proven, and from the circumstances determine the preponderance, etc., does not exclude from the jury the consideration of expert evidence.</p> <p>5. Malpbacstice — facts tobe considered. In an action for malpracti oe in tlie treatment of a broken bone in the plaintifi’s wrist, the condition •of tlie arm at the time of the injury, the manner of treatment by the defendants, the length of time the bandages and splints were permitted to remain, and whether complaint was made by the plaintiff of severe pain in