Chicago City Ry. Co. v. Matthieson

• Decision Date: 24 October 1904
• Citation: 72 N.E. 443,212 Ill. 292
• Parties: CHICAGO CITY RY. CO. v. MATTHIESON.
• Court: Illinois Supreme Court

212 Ill. 292

72 N.E. 443

CHICAGO CITY RY. CO.

v.MATTHIESON. ^*

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Appellate Court, First District.

Action by Johanna M. Matthieson, administratrix, against the Chicago City Railway Company. Judgment for plaintiff was affirmed by the Appellate Court, and defendant appeals. Affirmed.

William J. Hynes and Edward C. Higgins (Mason B. Starring, of counsel), for appellant.

Francis J. Woolley, for appellee.

CARTWRIGHT, J.

William C. Matthieson, a painter, who had been working at his trade during the day, in going home in the evening drove north with his son, 19 years old, in appellant's car tracks on Halsted street in a light wagon, in which there were pails and utensils used in painting and calcimining. At Thirty-Third street, as he was turning east, the left hind wheel of the wagon was broken, he was thrown out and fatally injured, and the horse ran away. This suit was brought by appellee, as administratrix of his estate, in the superior court of Cook county, charging the appellant with causing his death by negligence in running one of its cars against the wagon. A plea of the general issue was filed by the defendant, and there was a trial by jury. There were a number of witnesses on each side, apparently disinterested, who testified directly contrary to each other. The evidence for the plaintiff tended to show that the horse was going slowly in the car tracks; that a north-bound car came up rapidly behind and slowed down somewhat, while the bell was violently rung; that the horse became somewhat excited and increased his speed; that when in the act increased his speed; that tracks into Thirty-Third street the speed of the car was increased, and it struck the tailboard and left hind wheel of the wagon, breaking them and tipping the wagon over, when the horse ran away. The evidence for the defendant was that the wagon was not struck by the car at all; that when in the car tracks on Halsted street the horse was excited, acting wild, and going at a rapid rate; that in turning east out of the car tracks the wheel was wrenched and broken; that on account of the speed of the horse the wagon was swung around and tipped in such a way as to throw Matthieson out after he had gone some distance in Thirty-Third street; and that the fright of the horse was increased by the falling out of the pails and utensils in the wagon when the wheel broke down. The trial resulted in a verdict and judgment for $5,000, and the judgment was affirmed by the Appellate Court for the First District.

The first error alleged consists in the admission of evidence on behalf of the plaintiff. The most material question of fact in controversy was whether the car struck the wagon, as claimed by the plaintiff. On that question Frederick Kern testified, for the defendant, that he was sitting in front of his store, on the west side of Halsted street, at Thirty-Third street, reading a paper; that he heard the sound of a car bell ringing pretty loud and looked up; that he saw a little wagon ahead of the car about 25 or 30 feet; that the horse was on a lively trot, and as Matthieson turned short and went around the corner the wagon upset or tipped over with the whitewash and other things that were in the wagon. On his cross-examination he was shown a paper and said that the name subscribed to it was his signature. He read the paper and again stated that he signed it. The paper was then offered in evidence, and the court held that a part of it might be read to the jury unless counsel for defendant wished to examine witness further about it. There was no further examination at that time and a part of the paper was read, in which it was stated that when the witness first saw the wagon the car was three or four feet from it; that it might have been five or six feet away; that the car was going slowly, and did not stop at any time before the accident, and that he could not see light between the car and wagon when the man fell. On redirect examination by counsel for defendant the witness said that the paper, except the signature, was not in his handwriting; that he never read it and had no recollection of seeing it, and that what he stated at the time the paper was written was not in any way different from what he stated in his testimony. Counsel for defendant then moved to exclude the paper, but there was no ruling on the motion and no exception, so that on the motion to exclude the paper there is nothing to review. The court offered counsel an opportunity to examine the witness further concerning the paper before it was read; and if the subsequent testimony of the witness had then been introduced a different question would be presented. The witness was a German who did not read English readily, and his final testimony was to the effect that he did not state what was written in the paper; but when the paper was admitted the witness had read it and merely stated that he had signed it. His admission was prima facie evidence that the statement was his own, and the court did not err in admitting it.

It is further urged that the court erred in permitting the inconsistent statement to be read during the cross-examination of the witness. The proper time would have been when plaintiff presented his side of the case in rebuttal. Chicago City Railway Co. v. McLaughlin, 146 Ill. 353,34 N. E. 736. It is not a proper method to mingle testimony for the defendant with that for the plaintiff, unless there is something to warrant a suspension of the ordinary rule. In the orderly trial of a cause one party introduces his evidence and then the other party is heard, and the introduction of impeaching evidence during the examination of a witness is not in accordance with that rule, but the order in which evidence is introduced is generally regarded as in the discretion of the court. In that view the admission of the paper at the time it was read was not error for which the judgment could be reversed.

The witness Kern was also asked, on his cross-examination, if he did not make a statement to another person, and the statement was inconsistent with his testimony at the trial as to the distance between the car and the wagon. He said that it might have been that he did; that the statement that he made to that person was probably a year after the...