Chicago v. Bell

• Decision Date: 30 September 1873
• Citation: Chicago v. Bell, 70 Ill. 102, 1873 WL 8557 (Ill. 1873)
• Parties: CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COv.ANSLOW BELL, Admr.
• Court: Illinois Supreme Court

70 Ill. 102

1873 WL 8557 (Ill.)

CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD CO

v.ANSLOW BELL, Admr.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Grundy county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

Mr. THOMAS F. WITHEROW, for the appellant.

Messrs. HUNTER & PAGE, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

The plaintiff in the court below commenced two actions against the railroad company, founded upon a collision between a train on the defendant's railroad and the wagon and team of John Boyd, deceased, the plaintiff's intestate, at a highway crossing near Minooka, in Grundy county. One action was for damages sustained by the death of Boyd, and the other for damages resulting from the killing of his horses and the destruction of his wagon and harness.

The declaration alleged, as the negligence of the defendant which caused the collision, an omission to ring the bell or blow the whistle for a distance of 80 rods before reaching the crossing, as required by the statute. The cases were consolidated.

Verdicts and judgments were rendered in favor of the plaintiff in both cases, and the defendant has appealed.

It is assigned for error, that the court below excluded the declaration of one Mitchell, a person who was riding at the time with Boyd, made just after the collision, as to the condition Boyd was in at the time of the accident.

We know of no principle which would justify the admission of such declaration.

There could arise no inference of assent to it, on the part of Boyd, from his silence, as he was in a dying condition at the time. It is said they were joint wrong-doers, and that the admission of one joint wrong-doer is evidence against both. We fail to see how they could be considered as joint wrong-doers. Mitchell was riding with Boyd merely as a passenger. That is all there is in the case to affect Mitchell.

It is urged that the court erred in excluding the testimony of witnesses as to what Meade, one of the plaintiff's witnesses, said, at the time of the accident, in regard to Boyd's habit of going home intoxicated.

The testimony was not admissible for the purpose of impeaching Meade, as he had given no evidence upon that subject. It is true, he was asked, on cross-examination, whether he had not made such a statement, and denied it. But the question was incompetent, as it was not relevant to any testimony which the witness had given, and his answer, it being as to a collateral matter, had to be taken as conclusive. It was not admissible afterward to contradict him in that respect, and thus introduce into the case his unsworn statements. If defendant sought any statement of Meade upon that subject, it should have examined him as a witness, and got his sworn statement.

It is insisted that the court below erred in excluding evidence of what were the personal habits of the deceased when intoxicated. The inquiry was general, without any specification of the sort of habits sought to be proved.

We think the court was justified in rejecting the offered testimony, without some particularizing of the habits offered to be proved, so that it might be seen that they were such as that the proof of them would have a legitimate bearing upon the issue.

It is insisted that the verdict was manifestly against the evidence and the instructions of the court.

There is some apparent conflict in the testimony as to the alleged negligence in failing to ring the bell. Eight witnesses testified that they did not hear the bell ring, only one of them undertaking to testify positively that it was not rung. Of these witnesses, not one was nearer than 80 rods from the train. Three of them were 200 rods away, and one a mile and a-half. Five witnesses introduced by the defendant testified positively that the bell was rung, one of them, that he rang it himself. Three of these witnesses were disconnected with the road, and apparently disinterested, being passengers on the train. Upon any fair weighing of the testimony on this point, it would seem to be in favor of the appellant. But, were it otherwise, we are of opinion that the deceased's own want of proper care contributed directly to the injury, and should prevent a recovery.

This court has said, “it is the duty of persons about to cross a railroad, to look about them, and see if there is danger--not to go recklessly upon the road, but to take the proper precautions themselves to avoid accidents at such places. If a party rushes into a danger which, by ordinary care, he could have seen and avoided, no rule of law or justice can be invoked to compensate him for any injury he may so receive.” Chi. and A. R. R. Co....