Chicago & Nw. Ry. Co. v. Fillmore

• Decision Date: 30 September 1870
• Citation: 57 Ill. 265,1870 WL 6622
• Court: Illinois Supreme Court
• Parties: CHICAGO & NORTHWESTERN RAILWAY COMPANYv.WILLIAM J. FILLMORE.

57 Ill. 265

1870 WL 6622 (Ill.)

CHICAGO & NORTHWESTERN RAILWAY COMPANY

v.WILLIAM J. FILLMORE.

Supreme Court of Illinois.

September Term, 1870.

APPEAL from the Circuit Court of McHenry county; the Hon. THEODORE D. MURPHY, Judge, presiding. This was an action brought by Fillmore against the Chicago & Northwestern Railway Company, to recover for injuries to the plaintiff, occasioned by the alleged negligence of the defendants. The plaintiff recovered a verdict, upon which judgment was rendered. The defendants appeal.

Mr. A. M. HERRINGTON, for the appellants.

Messrs. BLANCHARD & SILVER and Messrs. JOSLYN & SLAVIN, for the appellee.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

On the 12th of October, 1868, appellee, in attempting to get on the train of the railway company, at its depot in Elgin, fell through an uncovered bridge, which was under the control of appellants, and was seriously injured.

As the case must be reversed, we shall not discuss the negligence of the one party or the other.

There was error in allowing the declarations of the conductor of the train, made after the accident had happened, to be introduced to the jury. He was a competent witness, and should have been called by appellee. The danger of the bridge and the responsibility of the company, as connected therewith, were to be determined by the jury, from the evidence. Whatever knowledge the conductor had, as to the condition of the bridge at the time, should have been stated by himself. His statements tended to show that the company were negligent. They were but hearsay evidence, and wholly incompetent.

The instructions given were correct. The instruction refused, and of which appellant complains, is as follows:

“The court instructs the jury, as matter of law, that the defendant was not bound to cover, and keep covered, the bridge or track over the road or side walk, where the injury was caused.” This instruction was properly refused. The bridge in question was thirty or forty feet long, and sixteen feet high. It was in the limits of a city, and over a public street in the immediate vicinity of the railroad. It had been covered by appellants, but was uncovered at the time of the accident, for repairs. Soon after the injury, it was re-covered by appellants. Appellee, in attempting to get upon the car, at the hour of midnight, fell through this bridge. It should have been covered, or so protected, if uncovered for repairs, as to prevent such injuries....