Chicago & Alton R.R. Co. v. Adler

• Decision Date: 30 September 1870
• Citation: 1870 WL 6536,56 Ill. 344
• Court: Illinois Supreme Court
• Parties: CHICAGO & ALTON RAILROAD COMPANYv.MICHAEL ADLER.

56 Ill. 344

1870 WL 6536 (Ill.)

CHICAGO & ALTON RAILROAD COMPANY

v.MICHAEL ADLER.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Will county; the Hon. J. MCROBERTS, Judge, presiding.

The opinion states the case.

Mr. A. W. CHURCH, for the appellants.

Messrs. RANDALL & FULLER, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action brought by appellee to recover a penalty against appellants for the failure to ring a bell or sound a whistle at the crossing of a highway with their engine and trains. The suit was instituted under the one hundred and thirty-eighth section of the railroad law of the 5th of November, 1849. On the trial in the court below, the jury found a verdict for $1,150, for various breaches of the statute, upon which a judgment was rendered.

It is first urged, that the court below erred in refusing to allow the peremptory challenges of jurors made by appellants. Four of the jurors who tried the case were asked on their voir dire if the evidence were evenly balanced, which way they would incline to find, and each answered that he would, in such case, lean against the defendants, and one of them stated he would do so because the company were able to stand it, and he thought a private individual should “have a little mite the advantage.”

It is a fundamental principle, that every litigant has the right to be tried by an impartial and disinterested tribunal. Bias or prejudice has always been regarded as rendering jurymen incompetent. And when a juror avows that one litigant should have any other than the advantage which the law and evidence give him, he declares his incompetency to decide the case. He thereby proclaims that he is so far partial as to be unable to do justice between litigants, or that he is so far uninformed, and his sense of right is so blunt, that he can not perceive justice, or, perceiving it, is unwilling to be governed by it.

The rule is so plain and manifest that the party claiming to recover must prove his cause of action, it is a matter of surprise that an adult can be found who would not know that such is the common sense as well as the common honesty of the rule. No ordinary business man would be willing that a claim pressed against him should be allowed, and he be compelled to pay it, when the evidence for and against the claim was evenly balanced. And how such men can bring themselves to apply a different rule, as jurors, to the rights of others, is incompatible with the principles of justice. Nor does the fact that jurors, who avow, under oath, that they would incline to favor a recovery by the plaintiff on evidence evenly balanced, declare that they are impartial, in the slightest degree tend to prove their impartiality. Their statement only tends to prove that they are so far lost to a sense of justice, that they regard what all right-thinking men know to be wrong, as just and impartial. To try a cause by such a jury is to authorize men who state that they will lean, in their finding, against one of the parties, unjustly to determine the rights of others, and it would be no difficult task to predict, even before the evidence was heard, the verdict that would be rendered. Nor can it be said that instructions from the court would correct the bias of jurors who swear that they incline in favor of one of the litigants. In suits for the recovery of penalties, the law does not warrant a recovery, unless the proof clearly preponderates in favor of the plaintiff. And to admit jurymen, who avow that they will not even require a preponderance, would be to violate the rule. The objection was well taken to the jurors, and the court erred in permitting them to act on the trial below.

Appellants asked, but the court refused to give, this instruction: “If the jury believe, from the evidence, that the witness, Jasper Adler, testified from a written memorandum which he held before him, and shall further believe, from the evidence, that said memorandum was a copy made the day previous, of another memorandum made about two years previously, then the jury are instructed that they will disregard so much of witness' testimony as depends on said copy.”

It has been held by this court that a witness may use a memorandum to refresh his memory. Dunlap v. Berry, 4 Scam. 372. But while the witness may use the memorandum to refresh his memory, he must be able to state that he remembers the facts. If he has no recollection of the circumstances, and can only say they are true because he finds them on his memorandum, it would not be proper to permit the witness to either read or speak from the memorandum. If, in this case, the witness could say that he remembered the omissions to ring the bell or to sound the whistle, no objection is perceived in permitting him to refer to his paper to ascertain the several dates, provided he can say...