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ARGUED AND DETERMINED
SUPREME COURT OF ILLINOIS.
CHICAGO AND EASTERN ILLINOIS RAILROAD COMPANY
E. H. BURRIDGE.
Opinion filed June 23, 1904—Rehearing petition dismissed October 4, 1904. Appellate and Supreme Courts, that the refusal of a certain instruction was error, the fact that no authority was cited until a late stage in the proceedings, id pursuance of leave granted by the Supreme Court, is not a waiver of the error.
1. INSTRUCTIONS—when instruction is not bad for referring to plaintiff's interest. An instruction stating that the jury, in weighing the plaintiff's evidence, may take into consideration that he is interested in the result of the suit, is not improper as singling out the plaintiff, where the suit is against a corporation and the plaintiff is the only witness directly interested in the suit.
2. SAME—it is error to refuse instruction as to right of jury to consider plaintiff's interest. In an action against a corporation for personal injury it is error to refuse an instruction permitting the jury to consider plaintiff's interest in the suit as affecting the weight of his testimony, where no other instruction of like import is given.
3. SAME-when refused instruction is not corered by given one. A refused instruction authorizing the jury to consider the plaintiff's interest in the suit when weighing his testimony is not covered by a given instruction stating the law where witnesses knowingly testify falsely to material matters.
4. SAME-instruction that law as stated by court is binding should be giren. An instruction stating that the instructions given to the jury by the court must be accepted by them as the law governing the case and that they will not be justified in finding a verdict contrary to the law so presented is correct, and should be given.
5. APPEALS AND ERRORS--when error in refusing instruction is not waired. If the appellant urges in his original brief, both in the
C. & E. I. R. R. Co. v. Burridge, 107 Ill. App. 23, reversed.
APPEAL from the Appellate Court for the Fourth District;---heard in that court on appeal from the Circuit Court of Marion county; the Hon. WILLIAM M. FARMER, Judge, presiding.
This was an action on the case in the circuit court of Marion county, brought by appellee to recover for personal injuries received by him while in a freight car containing personal property belonging to him, at Salem, in that county. The injury is charged to have resulted from the negligent act of the plaintiff in driving a train of cars with great violence against the freight car in question. The trial in the court below resulted in a verdict and judgment in favor of appellee for the sum of $1000, which has been affirmed by the Appellate Court for the Fourth District, and the case comes here by appeal.
Appellee shipped a stock of goods from Humboldt, Tennessee, to Salem, Illinois, over the Mobile and Ohio railroad and the appellant's railroad, in a freight car, which arrived at Salem on the evening of February 6, 1901, and appellant's agent at that place notified appellee of the arrival of his goods in order that the car might be unloaded by him. The car was placed on a side-track of appellant at Salem a short distance north and east of the depot building and east of the main track, at a point where cars were usually left by appellant for loading and unloading. There was a wagon road east of the side-track where freight was taken from the cars. On the morning of February 7, 1901, the appellee began removing his goods from the car. A dray was driven up to the east side of the car on the side-track, and the drayman, Rose, an assistant or clerk of appellee by the name of Justice, and appellee's business partner, Demp