delivered the opinion of the Court.
The record fails to show any plea by the defendant. It is therefore urged that the verdict was rendered in a case where no issue had been formed, and should, for that reason, be set aside.
The record does show that the defendant demurred to the original declaration, consisting of four counts; that this demurrer was overruled, and the plaintiff permitted to file an additional count, which was afterward withdrawn from the jury. The record further shows that the defendant appeared and voluntarily went to trial as if the plea of the general issue had been filed, and introduced evidence which it would not have had the right to do had not such plea been filed. As a part of the order overruling the demurrer, the record reads : “ The defendant required to plead herein within ten days from this date;” that order was entered on September 29, 1894. The case went to trial on the 6th day of January, 1896.
Appellant is now seeking not only to take advantage of its having failed to comply with an order of court, but of that which it is manifest worked no harm to it.
The case is very different from that of Waggoner v. Green, 40 Ill. App. 648, in which no declaration had been filed.
In a court of record the plaintiff, for the validity, of his judgment, must see to it that the defendant is brought or comes into court, and also that there are written pleadings showing a cause of action over which the court has jurisdiction. Thus jurisdiction over the person and subject-matter is made to appear.
"Unless such written pleading be filed by the plaintiff, there is nothing for the defendant to answer, and he need not appear, because only upon such pleading can a judgment. be taken against him. Black on Judgments, Secs. 84 and 183; Van Vleet on Collateral Attack, Secs. 59 to 62.
The defendant is not called upon to do anything to show jurisdiction. If he is brought or comes into court, jurisdiction over him is obtained; his plea confers no jurisdiction, and his failure to plead deprives the court of no right; on the contrary, it confers a right to enter his default, or, to speak more accurately, he thus deprives himself of a right he otherwise had.
Proceeding to trial as if an issue had been made up, when there has been a failure to make an issue, is a waiver of the formal issue, and the trial will be treated as though an issue by plea had been formally tendered. Douglas v. Matson, 35 Ill. App. 538; Strohm v. Hayes, 70 Ill. 41; Ross v. Reddick, 1 Scam. 73; Kelsey v. Lamb, 21 Ill. 559; Barnett v. Greff, 52 Ill. 170; Armstrong v. Mock, 17 Ill. 166.
During the closing argument of counsel for appellee, the following occurred;
“ Mr. Case s Hot a single man, woman or child on their side saw that coal wagon except that gripman, who put it there.to save himself, and Selle, who, I believe, did not see it at all, says that the coal wagon came from the east and went north. How that coal wagon was put ahead there to shield himself. Why, he says he has no motive to shield himself. Hasn’t he? Suppose he is out, and sore at the company, so he wants to exculpate himself, don’t he ? But I will tell you what- he does do. He brings the liability on that company after shielding himself beyond» a possibility of doubt, because he tells you in answer to their own questions, speaking of the brake on that car, that the brakes had been bothering him on that very occasion; that the brake didn’t stop.
Mr. Mason: Exception.
Mr. Case : This is evidence which they themselves read, to which I made no exception, for I saw it was going to hoist them. He lays it on the brake. He says the brake wasn’t at the very best, and when it comes—after explaining why he was discharged, he says : . “ That brake had been bothering me on that very occasion,” and that Crawford came along, and Crawford said something, and that they had words. The brake was out of order and they brought that out, and so the gripman wants to put the responsibility where it belongs, on the brake, and we say it makes no difference where it was, whether it was the brake or the failure on his part to look north, or the failure to ring the bell, it makes no difference.
Mr. Mason: I take an exception.
There wouldn’t have been any outcry, gentlemen, if the gripman had had his hand on the grip and slacked his speed —he had all the way across Sangamon street in which to stop. He could have seen that child if he had been looking. But it was the outcry of the passengers, the protest against -the reckless character' of this gripman, that called his attention to the child.
Mr. Mason: Exception.
That gripman tells you that he can stop a car in ten or twelve feet, in the face of the testimony of their own grip-man—and he gives the reason that he could not stop it— that that brake was out of order; he don’t want to exculpate himself, but he tells you that he can stop a train of cars in ten or twelve feet.
Mr. Mason: I want to save an exception to the statement by counsel.
The Court: The court has announced his ruling that there can be no recovery on the ground of a defective brake, nor should such a ground be urged on the jury, and to urge it would be error.
Mr. Case: Where were that gripman’s eyes? Why didn’t he see the little girl when she left the sidewalk ? She had a right to be there. These are public streets. Madison street is one of the public streets of the city. We have just as much right to be there, and more right to be there, than the street ear lines, because they have to operate their machinery of death with care.
Mr. Mason; I take an exception to that statement.
Mr. Case; They have got these juggernauts, modern juggernauts, that crush and mangle and maim.
Mr. Mason; I take an exception.
The Court: Save your exception.
Mr, Case ; Who is it that must take care if you point a gun at me ? Isn’t it for you to take care that you do not pull it—not for me to see that you do not pull it I You have got a deadly weapon in your hands'; you must exercise care, notl. This gripman stood here with a gun, a modern instrument of death, and it was his duty to have his eyes to the right and to the left to see that every one that left the sidewalk was protected. He did not do it, and that is as elear in this record as the daylight out there.
Mr. Mason: I take an exception.
The Court; Save your exception.
Mr. Case; Why, gentlemen, I have been trying cases of this kind for the last twenty years, and I am not astonished at the gentleman’s attitude of prayer in this case; when they get up and plead for mercy—mercy—what mercy did the gripman show this little child I What mercy or care did he exercise toward her ? Are you going to be governed by sentiment, or are you going to do what is right ? Are you going to apply your common sense ? You know that if the gripman had been looking the child would not have been struck; you know that if he had exercised any care whatever, she would not have been crippled and ruined for life, and I tell you when men, through a gripman, operate these dangerous implements of death, they must abide the consequences, and when gentlemen get up here and talk to you about public highways, it is done to deceive you. They do not see fit to tell you that public highways of this character are run for private profit.
Mr. Mason; I take an exception to that.
The Court: Yes, the question of private property is not in here.
Mr. Case: I do not know that they make any profit; there is nothing in the evidence, but I say these highways are run for the benefit of the people who are interested in them, and I say when they operate death dealing instruments on them, they must abide the consequences, and I do that, gentlemen. I do not appeal to your prejudices. I do not ask you to harden your hearts against this company, or steel it against this little girl. I want you to do by this little girl what you would want the jury to do by you under the circumstances.
Mr. Mason : I will save an exception.
The Court: Yes.”
We have no doubt that counsel for appellee, by an innocent misapprehension, misstated the testimony of the grip-man as to the brake. His testimony was not that on the trip during which appellee was injured, the brake had been £- bothering him;” the trouble with the brake, of which he spoke, occurred in February, 1894, he being discharged immediately afterward; the accident to> appellee happened in June, 1892. What the witness stated as to the condition of the brakes on the day of the accident was that they were not the best; that they were as good as the average.
The effect of the misstatement was, however, the same’ as if it had intentionally been made, and was to induce the jury to believe that the plaintiff had been injured because, among other things, the defendant had allowed its machinery to get out of order. Counsel remarked: “ The brake was out of order, and they brought that out, and so the gripman wants to put the responsibility where it belongs, on the brake; and we say it makes no difference where it was, whether it was the brake or the failure on his part to look north, or the failure to ring the bell, it makes no difference.”
Although the court did properly remark that there could be no recovery on the ground of a defective brake, yet the court did not, and probably, under the law permitting written instructions as to the law only, was powerless to protect the defendant from the malign influence of the unwarranted statement that the brake was out of order. To have admitted evidence that the brake was out of order would, under the issues, have been error and cause for reversal; what, then, shall be said as to so forcible a claim to the jury that such evidence existed ?
In no proper sense can a grip car be termed an “instrument of death.” True, people maj1- be, and sometimes are, killed by such cars; so, too, are they by ordinary wagons, as well as by the most useful and common of utensils and implements.
These can not, for this reason, be properly spoken of as instruments of death, because such is not the purpose for which they are designed or used.
There was no evidence tending to show that the gripman was actuated by malice, ill will or evil intent, in anything that he did, or that he was lacking in the qualities of mercy common to men. To insinuate that he failed to show mercy to the heedless child he saw before him, was not only unjust to the defendant, but cruel to a man who earned his bread by hard work, and whose sense of what is noble, what humanity demands, and desire to be respected by his fellows may be as keen as that of the eloquent counsel who thus stated, or that of the judge who sits upon the bench.
Upon a trial conducted according to the common law, the judge, in summing up, after pointing out what there was evidence tending to prove, would have called attention to the fact that there was no evidence that the gripman was merciless, or that the brake was out of order, and after stating what the questions of fact to be determined by the jury were, would have stated to it the law applicable to the case. The subject could thus have been intelligently and justly placed before the jury.
Under our system of practice, there is practically nothing which the court can do to remove the poison engendered by a maliciously unfair and unjust statement of counsel, save to grant a new trial. Whether the court will, for such cause, grant a new trial, is a matter resting in its discretion. If from all that was done, as well as from the verdict, the court is of the opinion that the jury were not thus improperly influenced, and that the verdict is in no measure the result of such unfair means, and that the parties have had the trial by jury which, under the constitution and law of this State, is their right, the verdict should not, for the misconduct of counsel, be set aside. Harms v. Stier, 67 Ill. App. 634; W. C. St. Ry. Co. v. Annis, Supreme Court of Ill., opinion filed Nov. 9, 1896; McDonald v. The People, 126 Ill. 150.
In the case at bar, after listening to the address before quoted, the jury rendered a verdict of $50,000 for the plaintiff. The sum is startling by its magnitude. While it is true that it may be said that this sum is not an adequate compensation for the injury to appellee, and that no amount could be declared to be a complete compensation, yet it is not the case that the award of damages for such an injury rests in the uncontrollable discretion of a jury.
The verdict in this case is, for a personal injury, the largest we have ever been called upon to consider. Instances of injuries as severe as those of appellee, the result of alleged negligence, have been called to our attention, and verdicts therefor rendered have been brought before us, but in no other instance has a jury awarded so large a sum. The amount here given exceeds by many thousand dollars that which any other jury has, to our knowledge, awarded.
Equal justice should be administered to-all. We, indeed, know that the attainment of this high ideal is impossible, yet our duty to strive for it remains, and is ever to be kept in mind.
Our experience leads us, irresistibly, to the conclusion that the very large and most unusual verdict rendered in this case, was the .result, in some measure, of the inflammatory and improper address of counsel. So believing, we feel compelled to set aside the judgment rendered.
The trial court, enforcing a remittitur, entered judgment for $35,000. This action was most commendable, so far as it went, but left the plaintiff in possession of substantial fruits of an unfair proceeding.
It is argued that the defendant confined itself to objecting to the remarks of counsel, and did not call for a ruling thereon. The speech of counsel was urged as ground for a new trial, and this we think sufficient to present the question.
As to continued interruptions during an address and an insistence of a ruling thereon by the court at that time, the remarks of the court in Berry v. The People, 10 Ga. 511, are appropriate. Lumpkin, Judge, said : “ It is contended that it was the dutj^ of the court to have stopped the counsel or to have disabused the minds of the jury, by way of charge, from the improper impressions thus produced. That the practice complained of is highly reprehensible, no one can doubt. It ought in every instance to be promptly repressed. For counsel to undertake by a side wind, to get that in as a proof which is merely conjecture, and thus to work a prejudice in the mind of the jury, can not be tolerated, hior ought the presiding judge to wait until he is called on to interpose. For it is usually best to trust to the discrimination of the jury as to what is, and what is not, in evidence, than for the opposite counsel to move in the matter. For what practitioner has not regretted his untoward interference, when the counsel thus interrupted, resume, “ Yes, gentlemen, I have touched a tender spot; the galled jade will wince; you see where the shoe pinches.’ ”
The judgment of the Superior Court is reversed and the case remanded.
Mr. Justice Gary.
This court of late years has not done its duty upon objections to verdicts because of the conduct of attorneys.
It may not be too late to do works meet for repentance.
Mr. Presiding Justice Shepard.
I do not think the judgment ought to be reversed altogether, because of the assigned improper argument of counsel.
In cases of personal injury where this court shall, for any such reason as appears in this record, be satisfied that the verdict was excessive, my opinion is that public convenience and justice to the litigants is best served by requiring a remittitur to be entered as a condition to an affirmance.
In this case, the injured girl suffered the loss of an entire leg, up to the hip, through the negligence of the appellant as found by the jury, and is meritoriously entitled to a recovery of substantial damages by way of compensation. Why, then, remand the cause for another trial, at great expense to the public, and deprivation to the injured one, when upon such other trial it is almost certain a recovery for a considerable amount will be had, without, at least, giving to her and her advisers the opportunity to say that she will accept a sum that this court may, upon a consideration of the whole case, think would be to her a just compensation under the law ? Be versed and remanded.