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

• Decision Date: 20 April 1904
• Citation: 70 N.E. 623,209 Ill. 339
• Court: Illinois Supreme Court
• Parties: CHICAGO & E. I. R. CO. v. ZAPP.

209 Ill. 339

70 N.E. 623

CHICAGO & E. I. R. CO.

v.ZAPP.

Supreme Court of Illinois.

April 20, 1904.

Appeal from Appellate Court, First District.

Action by Casendeign Zapp against the Chicago & Eastern Illinois Railroad Company. From a judgment in favor of plaintiff, affirmed by the Appellate Court (110 Ill. App. 553), defendant appeals. Affirmed.

Calhoun, Lyford & Sheean, for appellant.

W. S. Johnson and John R. Philp, for appellee.

BOGGS, J.

The action below was case, to recover damages for personal injuries sustained by the appellee through the alleged negligence of the appellant company. On the trial before the court and jury judgment was awarded the appellee in the sum of $7,000, and the same was affirmed in the Appellate Court for the First District on Appeal. By this its further appeal the appellant company asks reversal of the judgment on four grounds, namely: (1) That the court admitted improper testimony on behalf of the appellee; (2) that the court erred in orally instructing the jury as to the law of the case; (3) that the court erred in modifying instruction No. 22 asked by the appellant company; and (4) that counsel for the appellee was guilty of an abuse of the right of argument to the jury. We will consider these alleged errors in the order in which they are stated by counsel.

1. The appellee received her injury at the crossing of Archer avenue and appellant's railroad, in Chicago, and it became important that the jury should know the condition of the weather on the day and hour of the accident. The appellee called Prof. Henry J. Cox, who testified that he was in charge of the United States weather bureau at Chicago, and as such was the custodian of the record of the weather conditions of the local bureau at that station. The witness produced what he testified to be such record, and was permitted to read therefrom to the effect that it was ‘raining, with dense fog,’ on the day and hour in question. He further testified that the record of the meteorological conditions was made up for each month on blank forms provided by the department at Washington, and that a copy of the same was taken by a letterpress in the book which the witness produced, and that the original sheet was sent to Washington. Appellant insists the original sheets constituted the record, and that that which appeared in the letterpress book in Chicago was secondary evidence, and not admissible in the absence of testimony showing that neither the original nor a certified copy thereof could be obtained. We think the book which was produced in court was properly regarded as the record. The record of the Chicago office might have been made by writing the facts as to the meteorological conditions in a record book kept for that purpose, and making copies from the book to be sent to the department at Washington. That would have necessitated the additional labor of twice writing the data desired to be preserved. As a mere matter of convenience and saving of labor, the plan was adopted or writing such data first upon a loose sheet of paper or blank form, and transferring the same to he record book by means of a letterpress, which might be much more speedily done than by the slow process of writing. The mere fact the data were first placed upon the loose sheet or paper or blank form does not necessarily establish that it constituted the record. It was not prepared for the purpose of constituting the record, but for the purpose of serving as a copy of the record. The record consisted of what appeared in the book. Counsel for the appellant are in error in contending that the witness was permitted to testify as to the purport of the record. The book was produced by the witness in court, and, as we understand it, the witness read from the record.

2. The last instruction which the judge had marked ‘Given’ was No. 25, given for the appellant. The court read the instruction to the jury, and after reading it said to the jury: ‘I wish to modify that instruction; I will not give that instruction, gentlemen of the jury.’ The court then marked the instruction ‘Refused,’ and it was not...