Chicago & E.I.R. Co. v. Holland

• Decision Date: 26 September 1887
• Citation: 13 N.E. 145,122 Ill. 461
• Court: Illinois Supreme Court
• Parties: CHICAGO & E. I. R. CO. v. HOLLAND.

122 Ill. 461

13 N.E. 145

CHICAGO & E. I. R. CO.

v.HOLLAND.

Supreme Court of Illinois.

September 26, 1887.

Appeal from appellate court, First district; JOSEPH E. GARY, Judge.

The action was brought to recover damages for injuries sustained from defendant's negligence. Defendant was using the track of the Chicago, Rock Island & Pacific Railway in transferring a freight train from one track to another, and, while the track was thus occupied, a collision occurred between the freight train and a Rock Island passenger train, of which plaintiff was conductor; thus occasioning the injuries complained of. The material facts are stated in the opinion.Wm. Armstrong

, for appellant.

G. W. & J. T. Kretzinger, for appellee.

CRAIG, J.

On the thirteenth day of October, 1883, appellant appeared in court, and filed a motion in writing asking for an order of court tht appellee submit to an examination by two physicians, who are named in the motion. The court overruled the application, and the decision is assigned for error. Whether this decision was erroneous or not is a question which it will not be necessary here to determine. On the fifteenth day of December, 1884, the appellant sent two physicians of its own selection to the residence of appellee, for the purpose of makingan examination of his physical condition. One of the physicians had previously made a thorough examination, and he was not admitted; the other one, however, was admitted, and made an examination. On the twentieth day of December, 1884, appellant sent Dr. H. W. Lyman, who was one of the physicians named in its motion. He was admitted, and made a thorough examination of appellee. In what manner appellant was injured by the decision overruling the motion is not apparent. Had the motion been allowed an examination would have been made by two physicians. The motion was denied, but an examination was in fact made by three physicians of appellant's own selection. Nothing was lost by the decision, as appellant was allowed an examination, which was all it asked by the motion. The fact that the examination was made at a later period than it would have been made had the court allowed the motion, so far as appears, was a matter of no moment.

It is next insisted that the court erred in the admission in evidence of the conversations of James A. Healy and James C. Heckler with the conductor of appellant's train, which occurred a moment before the collision. The evidence of Healy was as follows: ‘I saw this conductor, and spoke to him, and the words I spoke to him were these: ‘Where are you going to?’ He says, ‘Going over with my train to back into the Pullman Y, over the Rock Island track;’ and the words I said to him were, ‘You hadn't ought to do any such thing; you will get catched.’ I said, ‘You are doing it on short time.’ I told him we were side-tracked; that we would not undertake to do it; and I asked him if he was flagging, and he said, ‘No; he didn't think it was necessary.’' The witnesses testified that the conversation occurred only a moment before the collision. The plaintiff had a right to show the situation of appellant's train, and what precaution, if any, the conductor in charge of the train had taken to guard against danger, and the declarations of the conductor made at the time they were on the eve of the collision were admissible as a part of the res gestae.

A witness was called by plaintiff to prove the amount plaintiff had incurred for medical treatment, and give the amount, both paid and unpaid, aggregating the sum of $784.80. The plaintiff had been treated by several different physicians, and it is insisted that the evidence was incompetent, as there was no proof that these physicians, or any of them, were entitled to practice medicine, under the statute. When the evidence was offered, the objection made to it was ‘that it is incompetent, immaterial, and irrelevant.’ If the law cast the burden upon the plaintiff to prove that the physicians who treated him were entitled to practice, which, however, we do not decide, appellant was bound to make the specific objection on the trial in order that the plaintiff might have an opportunity to remove the objection by proper testimony. The general objection was not enough. It was the duty of appellant to point out the specific objection of the evidence, and a failure to do so will preclude the right to rely upon such specific objection on appeal.

Upon the cross-examination of Dr. Peck, a witness called by appellant, the witness identified a certain letter written by Dr. Durfee in regard to the physical condition of appellee, and the letter was admitted in evidence, and this decision is claimed to be erroneous. The foundation for the introduction of this letter was laid by the appellant in the direct examination of Dr. Peck. The witness stated in his direct examination that the letter was handed to him by appellant, and he then proceeded to give its contents to the jury. As a part of the cross-examination of the witness, appellee had the right to read as evidence the original letter to the jury. If the contents were proper evidence for the appellant, which he cannot now dispute, the letter itself was likewise competent for appellee.

During the examination of some of the physicians by appellant obtaining their opinions in regard to some of the theories advanced by medical authors, certain remarks were made by the court in relation to the practice of making long quotationsfrom medical works, and asking the opinion of witnesses thereon, in which the court said: ‘I have a book written in Spanish, by a Mexican lawyer, and I may as well read that to him as your reading medical books to them.’ It will be observed that the court made no ruling in regard to the admission or exclusion of evidence, and as to the remark made by the court, we cannot see that it injured any...