Jacksonville & S.E. Ry. Co. v. Southworth

• Decision Date: 01 November 1890
• Court: Illinois Supreme Court
• Parties: JACKSONVILLE & S. E. RY. CO. v. SOUTHWORTH.

135 Ill. 250

25 N.E. 1093

JACKSONVILLE & S. E. RY. CO.

v.SOUTHWORTH.¹

Supreme Court of Illinois.

Nov. 1, 1890.

Appeal from appellate court, third district.

Action by Elizur Southworth against the Jacksonville & Southeastern Railway Company. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals.

Morrison & Whitlock, for appellant.

Brown, Wheeler & Brown, for appellee.

WILKIN, J.

This was an action on the case by appellee against appellant to recover for a personal injury, alleged to have been caused by the negligence of appellant. The declaration alleges that the plaintiff was a passenger on one of the passenger trains of the defendant, on the 11th day of March, 1887, between the stations of Virden and Litchfield, in this state, having an annual pass, on the back of which was the condition: ‘This pass is not transferable, and the person accepting it assumes all risk of accident and damage to person and baggage.’ The negligence charged in the first count of the declaration is: Permitting and suffering the road-bed and track, for a distance of three miles south of Virden, to be and remain out of repair; failing to furnish proper cars for the transportation of plaintiff; and running said train at a dangerous rate of speed. It avers that by reason of the unsafe and insecure condition of said road-bed and track, and the insufficiency of said car, and the rapid and reckless running of said train, the car in which the plaintiff was riding was thrown from the track, down an embankment, whereby plaintiffwas injured, etc. The second count is the same as the first, except that it charges only the running of the train at a dangerous and reckless rate of speed, whereby the said car was thrown from the track, and plaintiff injured, etc. On this declaration, plaintiff recovered a judgment in the circuit court of Montgomery county, for $6,500, and costs; which having been affirmed in the appellate court, appellant prosecutes this appeal.

It is conceded that under the condition in the pass, upon which plaintiff was riding at the time of the accident, he could only recover by proving that he received his injury through the gross negligence of defendant; but it is also conceded that that question of fact is settled adversely to appellant by the judgment of the appellate court. The questions of law raised in this court, and urged as grounds of reversal of the judgment below, are: The circuit court erred in admitting improper evidence, in giving and refusing instructions, and in refusing to submit certain questions to the jury for special findings.

On the trial the depositions of Charles Schlow and John T. McKean were introduced in evidence by the plaintiff, in which they testified that they assisted in repairing the track of the defendant at and near the place of the accident, during the months of August and September, 1887; that they took out ties that were rotten and rails that were ‘battered;’ that some of the ties were too small, and some of the rails very short; also that the road-bed was in bad condition, not ballasted, and the rails lying on the dirt. Their evidence tends to show that, at the time the repairs were made, the general condition of the track was bad. Before these depositions were read, counsel for defendant objected to their introduction on the sole ground that ‘said depositions speak of what occurred last August and September, in repairing the track.’ In ruling upon that objection, the court admitted the depositions, but stated, in substance, that the question of repairs could not affect the issue being tried, and that any evidence of that character was excluded from the jury, and was not to be considered by them in making up their verdict. No exception was taken to this ruling, and the plaintiff's counsel proceeded to read the depositions. General objections were interposed by counsel for appellant to some of the questions and answers, which were overruled. The general tenor of the evidence contained in these depositions is not to prove that the track was repaired by the defendant, after the injury to plaintiff, but to show the condition of the road-bed, ties, and rails, at the time the repairs were made. The witnesses testify that ites were rotten, and too small; rails ‘battered,’ and too short; road-bed not ballasted, and rough. It is insisted that this evidence is incompetent, because it is confined to a time long after injury, and because it is not limited to the place of the accident. Plaintiff's case does not proceed on the theory that he was injured by reason of a defect in the track or road at the very place where the car in which he was riding was wrecked, but because of the rapid running of the train over an imperfect track. It was therefore competent for him to show the condition of the track over which the train had to pass before reaching the point where the derailment occurred. Many cases can doubtless be found,...