Chicago v. Lee

• Decision Date: 30 September 1871
• Citation: 1871 WL 8181,60 Ill. 501
• Court: Illinois Supreme Court
• Parties: CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANYv.MARY J. LEE.

60 Ill. 501

1871 WL 8181 (Ill.)

CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY

v.MARY J. LEE.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Henderson county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Messrs. FROST & TUNNICLIFF, for the appellants.

Messrs. KITCHELL & ARNOLD, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action brought by the administratrix of the estate of Darius B. Lee, deceased, under the act of 1853, on behalf of herself and children, as the widow and next of kin of the deceased, for damages resulting to them from his death, charged to have been caused by the carelessness and negligence of the defendants below in operating their engine and train, and occasioning a collision between the same and the deceased while driving his team along the highway and over the railroad track of the defendants at a public crossing.

The charge of carelessness alleged in the declaration was, the failure to ring the bell or sound the whistle while the train was approaching the crossing with unusual speed, or to give the deceased any warning of its approach.

Previous to the commencement of the trial in the court below, the defendant moved to suppress all that portion of the answer to interrogatory seven of the deposition of George A. Clark, which states the declarations of the engineer of the company as to the transactions at the time of the accident, made at a subsequent time and after his return to the place of the accident, which motion the court overruled. This was erroneous.

When the acts of the agent will bind the principal, then his declarations respecting the subject matter will be evidence against the principal if made at the same time, and constituting a part of the res gestæ.

But the agent's declarations are not admissible against the principal if not made at the very time of the transaction, but upon another occasion.

These declarations were not made in regard to a transaction then depending, characterizing it, and admissible as verbal acts forming a part and parcel of the transaction. But they were made afterwards upon another occasion, and were a mere narration in regard to a transaction already passed, and should have been excluded as merely hearsay testimony. 1 Greenlf. Ev. sec 113; Thallhimer v. Brinkerhoff, 4 Wend. 394; Stiles et al. v. Western Railroad Corporation, 8 Metc. 44; Luby v. The Hudson River Railroad Co. 17 N. Y. 133; Story on Agency, secs. 134, 135; Waterman et al. v. Peet et al. 11 Ill. 648; C. B. & Q. R. R. Co. v. Riddle, post, 534. The answer is without force, that the objection should have been made at the time of taking the deposition. The evidence being wholly incompetent, the objection might be taken at any time.

The same objection applies to the answer of Green to the twentieth interrogatory in his deposition, which details the particulars of the conversation between the witness and Martin. So much of the answer as is merely responsive to the interrogatory, that it was spoken of, whether the bell was or was not rung and whistle sounded, might not be objectionable as a circumstance to fix what then occurred in the memory of the witness. But the particulars of the conversation were clearly inadmissible. Evidence was wrongly admitted, too, that the trains had, at other times, passed the crossing without ringing the bell. From the fact of omitting to ring the bell at any previous time, no reasonable inference could be drawn that it was not rung on the occasion in question.

The point in issue was, whether there was a failure to ring it then, not at any other time; and the evidence should have been restricted to negligent conduct at the time of the accident.

Nor does it afford a justification for the admission of the testimony that other like testimony had been introduced into the case without objection. It is the right of a party to have incompetent testimony excluded on his objection, whenever offered. The fact of there being other like testimony in the case would bear only upon the question of the extent to which the party was prejudiced by the admission of the additional incompetent testimony.

Neither can the admission of the testimony be sustained upon the ground that it was introduced for the purpose only of discrediting the engineer in his testimony that he always rung the bell at the crossing. That testimony of the engineer does not appear to have been brought out on his examination in chief by the defendant, but on the cross-examination of the witness by the plaintiff. A witness is not to be cross-examined as to any distinct collateral fact, for the purpose of afterwards impeaching his testimony by contradicting him.

If a question, as to a collateral...