Louisville v. Shires

• Decision Date: 23 January 1884
• Citation: 1884 WL 9758,108 Ill. 617
• Parties: LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANYv.AUGUSTUS C. SHIRES, Admr.
• Court: Illinois Supreme Court

108 Ill. 617

1884 WL 9758 (Ill.)

LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY

v.AUGUSTUS C. SHIRES, Admr.

Supreme Court of Illinois.

Filed at Ottawa Jan. 23, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding.

Messrs. JUDD & WHITEHOUSE, and Mr. WILLIAM RITCHIE, for the appellant:

The ordinance of Michigan City was not provable by copy, as it required collateral proof, such as, proof of power to pass the same, and of its passage in due form. Starkie on Evidence, *268. No proper foundation was laid for proof by copy. (1 Dillon on Mun. Corp. sec. 422.) Our statute on this subject has no application to ordinances of cities in other States. Rev. Stat. chap. 24, secs. 65, 82.

The ordinance was not properly authenticated, under the act of Congress. U. S. Rev. Stat. sec. 906; King v. Dale, 1 Scam. 513; Giles v. Shaw, Breese, 125; Morrison v. Hinton, 4 Scam. 457; Brackett v. People, 64 Ill. 170.

Objections to the substance of depositions may be made on the trial. Frink v. McClung, 4 Gilm. 569. See, also, Wolsey v. Mahon, 46 Texas, 62; Steinkel v. Newton, 38 Eng. C. L. 319; Palmer v. Crook, 7 Gray, 419; Atlantic Ins. Co. v. Fitzpatrick, 2 Id. 279; Tufton v. Whiteman, 12 A. & E. 370.

Deposition of a witness, being in the nature of secondary evidence, is not admissible if the witness is present at the trial. Week's Law of Depositions, sec. 6; Dunn v. Dunn, 11 Mich. 292; Boetge v. Landa, 22 Texas, 108; Stiles v. Bradford, 4 Rawle, 401; Haywood v. Barron, 38 N. H. 369; Sargent v. Adams, 1 Tyler, (Vt.) 197; Brewer v. Beckwith, 35 Miss. 471.

It devolved upon the plaintiff to show authority to pass the ordinance. City of Alton v. Insurance Co. 72 Ill. 328; Schott v. People, 89 Id. 197; Chicago and Alton R. R. Co. v. Engle, 76 Id. 318.

There was no competent evidence of the passage of the ordinance. The only legal mode of proving facts on record is by the record itself, or by an attested copy. Moore v. Newfield, 4 Greenlf. 44; Morrison v. City of Lawrence, 98 Mass. 219; 1 Wharton on Evidence, sec. 65; Ætna Ins. Co. v. Aldrich, 38 Wis. 107; Barr v. Village of Auburn, 89 Ill. 361.

As to the proper basis on which an expert may give an opinion, see Underwood v. Waldron, 33 Mich. 235; Hitchcock v. Burdet, 38 Id. 506; Rich v. Jones, 9 Cush. 337; 117 Mass. 122; Sinnot v. Mullin, 82 Pa. St. 342; Grand Rapids R. R. Co. v. Huntley, 38 Mich. 542; Hunt v. Lowell Gas Co. 8 Allen, 169; Hand v. Brookline, 126 Mass. 326; Gilman v. Strafford, 50 Vt. 726.

If the laws of another State be relied on, that law must be fully recited in the pleadings. Wilson v. Clark, 11 Ind. 387; 2 Waite's Practice, 329; Tyler v. Kent, 52 Ind. 584; Walker v. Maxwell, 1 Mass. 103; Roots v. Merryweather, 8 Bush, 397; Homes v. Broughton, 10 Wend. 75.

Expert need not hear all the evidence before he can give his opinion. Rogers on Expert Testimony, sec. 22; Miller v. Smith, 112 Mass. 475; Davis v. State, 38 Md. 40; State v. Hayden, 51 Vt. 296.

The plaintiff's right to recover is under the laws of Indiana, where the doctrine of comparative negligence does not prevail. That doctrine is peculiar to this and a few other States. 2 Thompson on Negligence, 1164, 1166; Wharton on Negligence, sec. 334; Shearman & Redfield on Negligence, sec. 39; Cooley on Torts, 677; Bigelow's Leading Cases on Torts, 725.

Counsel made various other points and cited many other cases, which are omitted for want of space.

Messrs. EDSALL, HAWLEY & EDSALL, for the appellee, made the following among various other points of law:

Facts showing a de facto organization of a city are sufficient when the question arises collaterally. State v. Carr, 5 N. H. 367; Mendota v. Thompson, 20 Ill. 197; Doyle v. Douglas Machinery Co. 73 Id. 273; Doyle v. Village of Bradford, 90 Id. 417.

If an objection to evidence can be obviated, it should be pointed out at the earliest opportunity, or it will be waived. Doyle v. Village of Bradford, 90 Ill. 417; Harvey v. Dunn, 89 Id. 585; Wright v. Smith, 82 Id. 527; Buntain v. Bailey, 27 Id. 410; Swift v. Whitney, 20 Id. 144; Kassing v. Mortimer, 80 Id. 602. A general objection is available only when the evidence is inadmissible under any circumstances. Wilson v. King, 83 Ill. 232; Buntain v. Bailey, 27 Id. 410; Sidwell v. Schumacher, 99 Id. 426; Garrick v. Chamberlain, 97 Id. 621.

Only objections to the substance or pertinency of evidence taken by depositions can be made for the first time at the trial. Winslow v. Newton, 45 Ill. 146.

If the deposition is taken on written interrogatories, the objections must be taken on motion to suppress, before the trial. Cooke v. Orne, 37 Ill. 186; Corgan v. Anderson, 30 Id. 95.

If taken by oral examination, in the presence of both parties or their attorneys, objections which might be obviated must be specifically made before the commissioner, and noted by him. Goodrich v. Hansen, 33 Ill. 499; Lockwood v. Mills, 39 Id. 602.

The ordinance was proved as an examined copy by the clerk who made the original record. All the law respecting such copies was fully met. 1 Greenleaf on Evidence, sec. 508.

The objection that the Indiana statute had not been specifically pleaded, not being made on the trial, was waived. Indianapolis and St. Louis R. R. Co. v. Estis, 96 Ill. 470; Doyle v. Douglas Machinery Co. 73 Id. 273.

The law does not require that a statute of another State shall be copied at length in the pleadings. Stacy v. Baker, 1 Scam. 418; Hyman v. Bayne, 83 Ill. 258.

When the medical expert has not examined the patient, the general rule is, to require the questions to be so framed as to recite the supposed facts hypothetically, so that the witness may state his opinion upon such supposed facts, in case the jury find the same to be true. Rogers on Expert Testimony, secs. 24-26; City of Decatur v. Fisher, 63 Ill. 241; Chicago, Rock Island and Pacific R. R. Co. v. Moffitt, 75 Id. 525; 1 Greenleaf on Evidence, sec. 440; Sills v. Brown, 9 C. & P. 601, 38 E. C. L. 352; 1 Phillips on Evidence, (C. & H.'s notes,) 662, note.

There was no error in the instruction as to comparative negligence. Both parties tried the case with reference to the doctrine of comparative negligence as held by our courts. If the rule is different in Indiana, it was incumbent on the party seeking the benefit thereof to aver and prove what the Indiana law was. Rorer on Inter-State Law, 33, 34; Story on Conflict of Laws, secs. 637, 638; Monroe v. Douglas, 1 Seld. 447; Chumasero v. Gilbert, 24 Ill. 293; Crouch v. Hall, 15 Id. 263; Milwaukee and St. Paul Ry. Co. v. Smith, 74 Id. 197; Tinkler v. Cox, 68 Id. 119.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action brought by James G. Ostrander, against the Louisville, New Albany and Chicago Railway Company, to recover damages for an injury received in Michigan City, Indiana, at the crossing of the railroad track with Franklin street, on the morning of November 21, 1881. The trial of the cause in the circuit court resulted in a verdict and judgment in favor of the plaintiff, which, on appeal, was affirmed in the Appellate Court.

In the first count of the declaration it is averred that Michigan City is a duly incorporated city under the laws of Indiana, and had power to pass ordinances for regulating the speed and management of cars and engines crossing its streets; that by virtue of such power the common council of said city passed an ordinance, which was approved and published as by law required, and was in force at the time of the injury; that said ordinance contained the following:

“Sec. 1. No locomotive or car shall be run faster than six (6) miles per hour within the following limits in said city, viz: From Chicago street (or Prison crossing) to the east line of Trail creek. Sec. 3. All railroad companies upon track or tracks which cross or intersect the following named streets at the points herein designated, to-wit: Franklin street and Chicago street, (or what is known as Prison crossing,) and at all other street crossings where they shall be required so to do by the mayor, shall keep a flagman stationed from six A. M. to nine P. M.: Provided, that when two or more roads so intersect a crossing, they may jointly employ one flagman.

Sec. 4. Every locomotive or train running in the night time in said city, shall, while running, keep a brilliant light on the forward end, and some sufficient signal light in charge of some competent person, who shall remain on the rear end of such locomotive or train whenever it is backing.”

It is then averred that the accident occurred after six o'clock in the morning, and before seven o'clock; that no flagman was present at the crossing to warn plaintiff of danger; that the train was running at a rate of speed exceeding six miles an hour; that the bell was not rung or the whistle sounded as the engine approached the crossing. Other averments are found in this count of the declaration, but it will not be necessary to state them here.

In order to prove that there was an ordinance as averred in the declaration, plaintiff offered to read in evidence the deposition of D. S. Brown. He testified that he was city clerk of Michigan City in 1879, and kept the city records; that he wrote the record, as clerk, of which exhibit “A,” attached to his deposition, is a copy; that he compared the exhibit with the record; that the ordinance was published in the “Michigan City Enterprise,” a paper published in Michigan City, for two consecutive weeks following its passage. In answer to a question, the witness, in his deposition, stated that exhibit “A” is a copy of an ordinance passed by the common council of Michigan City in 1879. This evidence was objected to by the defendant, but the court overruled the objection, and that decision is relied upon as error. We do not regard the decision erroneous. The ordinance might have been proved by the...