Chicago & E.R. Co. v. Meech

• Decision Date: 09 November 1896
• Citation: 45 N.E. 290,163 Ill. 305
• Court: Illinois Supreme Court
• Parties: CHICAGO & E. R. CO. et al. v. MEECH.

163 Ill. 305

45 N.E. 290

CHICAGO & E. R. CO. et al.

v.MEECH.

Supreme Court of Illinois.

Nov. 9, 1896.

Appeal from appellate court, First district.

Action by H. H. Meech against the Chicago & Erie Railroad Company and others. There was a judgment for plaintiff, which was affirmed by the appellate court (59 Ill. App. 69), and defendants appeal. Affirmed.

Craig, Phillips, and Wilkin, JJ., dissenting.W. H. Lyford, F. O. Lowden, W. O. Johnson, J. B. Mann, and E. A. Bancroft, for appellants.

Edgar Terhune (A. W. Browne, of counsel), for appellee.

BAKER, J.

This is an action on the case, for personal injuries, brought by Meech, the appellee, against the Chicago & Erie Railroad Company, the Chicago & Eastern Illinois Railroad Company, and the Chicago & Western Indiana Railroad Company. The result of a jury trial in the superior court of Cook county was a verdict against the three corporations, jointly, for $15,000. A remittitur of $7,000 was entered, and final judgment rendered for $8,000 damages and costs. The judgment was afterwards affirmed in the appellate court, and this further appeal then prosecuted.

There was a joint user, under leases, of the tracks of the Chicago & Western Indiana Railriad Company by the Chicago & Eastern Illinois Railroad Company and the Chicago & Erie Railroad Company. On the evening of January 13, 1893, appellee was a passenger on a suburban passenger train of the Chicago & Eastern Illinois Railroad Company, when a passenger train of the Chicago & Erie Railroad Company ran into and telescoped the rear end of said suburban train, while the latter was standing at, or just leaving, the Fifty-Fifth street station on the line of the Chicago & Western Indiana Railroad tracks in the city of Chicago, and appellee was injured as a result of such collision. It is the settled law of this state that when injury results from the negligent or unlawful operation of a railroad, whether by the corporation to which the franchise is granted, or by another corporation or other corporations which the proprietary company authorizes or permits to use its tracks, the company owning the railway tracks and franchise will also be liable. Pennsylvania Co. v. Ellett, 132 Ill. 654, 24 N. E. 559, and authorities there cited.

Appellants claim that the appellate court, in rendering its judgment of affirmance, evaded the duty which rested upon it, of reviewing the evidence and determining whether it justified the verdict of the jury, and, without examination or consideration, accepted the verdict as final upon all questions of fact. As we said in Railroad Co. v. Heinrich, 157 Ill. 388, 41 N. E. 860, it is the duty of the appellate courts, under the law as it exists in this state, to consider the testimony, and if they find that the verdict and judgment are not supported by it, or are clearly against the weight of evidence, to set aside such verdict and reverse such judgment. A performance of this duty is absolutely essential for the preservation of the rights of citizens and property owners in all those classes of cases where the judgments of the appellate courts are final and conclusive upon all questions of fact. But, as we also said in the case last cited, we cannot do otherwise than presume that the appellate court has faithfully performed that duty, and has found that the evidence properly sustains the verdict and judgment. Yet, be this as it may, we are expressly prohibited by the statute from reviewing, in a case such as this, the decisions of the courts below upon controverted questions of fact.

A claim is made that it was reversible error to allow the plaintiff, over the objections of defendants, to ask the witnesses Clarke, Rubridge, and Lyford the questions that were asked them in regard to an arbitration agreement between the defendants, or some of them. In answer to the question ‘if he knew whether there were any contracts between the roads, or any of them, in regard to the accident,’ the witness Clarke answered that he was unable to answer the question. In answer to a like question addressed to the witness Rubridge, he answered, ‘I think there was'; but he was neither asked any question, nor made any answer, in regard to the contents of such agreement. The witness Lyford, in answer to a like and further questions, answered, in substance, that there was an agreement entered into with reference to the accident; that it was between the Chicago & Eastern Illinois Railroad Company and the Chicago & Erie Railroad Company, and made provision for an arbitration in regard to the accident; that ‘the result of that arbitration was to determine, as between the two above-mentioned companies, the liability for that accident,’ and that ‘it further provided that there should be submitted to the arbiters only the written evidence which was taken in shorthand at the investigation held immediately after the accident occurred; that there should be submitted to the board of arbiters a time card which was in force, and the book of rules of the Chicago & Western Indiana Railroad Company which was in force, at the time the accident occurred, also a plat showing the position of the tracks, etc.; that the arbiters might, if they saw fit, visit the scene of the accident.’ At the close of his testimony, the evidence of this witness concerning the contents of this arbitration agreement was stricken out by the court, except the reference to the rules and regulations. We are wholly unable to see how the testimony of either Clarke or Rubridge could by any-even remote-possibility have any effect upon the verdict of the jury. Excluding the matter of the reference to the rules of the Western Indiana Company contained in the agreement, the same may be said in respect to the testimony of Lyford in regard to the contents of the agreement. It was wholly immaterial, and it seems impossible that it could in any way influence the verdict of reasonable and sensible jurors. At all events, with the exception of the reference to the rules and regulations of the Western Indiana Company, it was immediately striken out and excluded from the jury. And said rules and regulations were then already in evidence before the jury, and it is manifest from the other evidence in the record that all of the defendant railroad companies were governed by and operated under these rules and regulations, and no claim to the contrary is or was made. Even Mr. Lyford testifies that he knows of his own knowledge that the Eastern Illinois Company uses the Western Indiana tracks under certain leases, and that while upon the Western Indiana tracks the Eastern Illinois trains are subject to the orders and rules and regulations of the Western Indiana Company, as also are all other trains which use those tracks. Whatever of admission there may be in the arbitration agreement in respect to said rules and regulations is merely cumulative to plenary proof otherwise in the record, and which was not and is not disputed. If any errors were committed in allowing the questions that were asked either Clarke, Rubridge, or Lyford, then such errors worked no injury, and afford no just ground for reviewing the judgment.

The averment of damages in the first and second counts of the declaration is, in part, as follows: ‘And has been prevented from attending to his usual business and avocation, and earning and receiving large emoluments which he otherwise would have earned and received.’In the third count the averment, in part, is: ‘And, as the immediate result of said injuries, plaintiff has heretofore been hindered and prevented, and will hereafter be hindered and prevented, from attending to and transacting his affairs and business, and plaintiff has heretofore been, and will hereafter be, deprived of large gains and profits which he might otherwise and would have acquired in said business.’ And in the fourth count the statement is substantially the same. The plaintiff testified at the trial that he was a contracting painter at the time of the accident, and that it was his mode of business to obtain contracts for painting, and employ others to assist in doing the work. He was then permitted to state, over the objections of defendants, that since the accident he had not been able to make a living. The following then occurred: ‘Q. I will now ask you to state as nearly as you can how much you have earned as a painter, without regard to any special contracts, since the 13th day of January, 1893,-the total amount. (Same objection by each of the defendants. Objection overruled by the court. Exception by each of said defendants.) A. $100 would cover it. Q. I will ask you to state how much you made as a painter, without regard to any special contracts, for, say, a year anterior to the 13th day of January, 1893. (Objected to by each of said defendants. Objection overruled by the court, to which ruling of the court each of said defendants excepted.) A. I can approximate the amount. I can't give the exact amount. $3,000.’ It is urged the court erred in permitting the plaintiff to testify what his income from his business had been for the year before the collision, and what since. In City of Chicago v. O'Brennan, 65 Ill. 160, the trial court permitted appellee to give in evidence the fact of particular engagements to lecture in the state of Virginia, and the probable gains thereof, and that appellee was prevented from fulfilling them by reason of the injury, and his estimates of the special loss thereby sustained. Appellant insisted that this evidence was inadmissible, on the ground that it was special damage which was not alleged in the declaration. This court held that it was necessary that these special damages, and the facts on which they were based, should have been set out in the declaration. In City of Bloomington v. Chamberlain, 104 Ill. 268, the averment in the first count of the declaration was that plaintiff was hindered from transacting her business and affairs, and...