Ill. Cent. R.R. Co. v. Weldon

• Decision Date: 30 September 1869
• Parties: ILLINOIS CENTRAL RAILROAD COMPANYv.MARTIN WELDON, Administrator, etc.
• Court: Illinois Supreme Court

52 Ill. 290

1869 WL 5429 (Ill.)

ILLINOIS CENTRAL RAILROAD COMPANY

v.MARTIN WELDON, Administrator, etc.

Supreme Court of Illinois.

September Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Whiteside county; the Hon. W. W. HEATON, Judge, presiding.

This was an action on the case, brought under the statute, by Martin Weldon, as administrator of Christopher Weldon, deceased, for the benefit of the widow and next of kin, against the Illinois Central Railroad Company, for wrongfully causing the death of the said Christopher.

The circumstances attending the accident were briefly these: the deceased, being in the employment of a coal dealer, as a laborer in unloading coal from cars at the company's depot in Dixon, in this State, on the day of the accident had been unloading coal from a car standing on one of the tracks, and on returning to his work, after a short absence, he found the coal car removed from the place at which he had been unloading it, it having been drawn away with some other cars by the employees of the company, who were engaged at the time in switching upon that track in making up a train. The coal car was soon put back in its former position, when the deceased got into the car and commenced the work of shoveling out the coal, the switching still going on upon that track. While so at work, other cars were run against the coal car with such force as to throw deceased upon the ground, and he was run over and killed.

A trial resulted in a verdict and judgment for the plaintiff, for $5000. The railroad company appeals. The opinion of the court sufficiently presents the grounds of the alleged error.

Messrs. GOODWIN & WILLIAMS, and Mr. B. C. COOK, for the appellants.

Mr. WILLIAM BARGE, for the appellee. Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

Several objections are made on this record, but we shall address ourselves to those bearing upon the instructions. Preliminary to this, an objection raised on the rejection of the testimony of Woolley, a witness called for appellants, will be disposed of. Woolley, the rejected witness, was an employee of appellants in a capacity connecting him with the making up of trains for the road, and when offered as a witness, was rejected, on the ground of interest, being liable over to appellants.

The rule of the common law in relation to the interest of a witness is familiar to all, and operated in full force in this State until the enactment of the law of 1867. However much the existence of the rule was regretted by the most learned and distinguished courts of this country and of England, it was inexorably enforced, and witnesses of the highest character in the community were excluded from the stand, if it appeared they had an interest in the event of the suit. To make such competent, resort was had to a written release executed with all the forms of law. Our legislature, in a spirit of enlightened policy, abolished this rule, by declaring that no person should be disqualified as a witness in any civil action, suit or proceeding, or by reason of his or her interest in the event thereof, as a party or otherwise, or by reason of his or her conviction of any crime. Sess. laws, p. 183.

By the common law, and under the authority of the case of the Galena & Chicago Union Railroad Co. v. Welch, 24 Ill. 33, this witness was incompetent, but this act of 1867 removed his disability, and he should not have been rejected, or the appellants compelled to execute to him a release of whatever claim they may have had on him for prospective damages, and did the cause rest upon this point, we should be inclined to hold the error sufficient to reverse the judgment. But the appellants were not deprived of the testimony of this witness. He was sworn and examined, and testified fully in the cause. Now, as to the instructions. Those given for appellee are for the most part confined to the conduct of the deceased whilst engaged in unloading the coal cars, without any reference to the question of going upon that car at the time and under the circumstances he did enter upon it. The central question is, did the deceased use proper care and caution in entering upon this car under the circumstances then existing? This is an...