Rogers v. Chicago, B.&Q.R. Co.

• Decision Date: 15 May 1886
• Citation: 6 N.E. 889,117 Ill. 115
• Court: Illinois Supreme Court
• Parties: ROGERS v. CHICAGO, B. & Q. R. CO.

117 Ill. 115

6 N.E. 889

ROGERS

v.CHICAGO, B. & Q. R. CO.

Supreme Court of Illinois.

May 15, 1886.

Appeal from Second district.

SCHOLFIELD, J.

This was an action on the case, by appellee against appellant, for negligence. The declaration alleged that appellant was injured while in the exercise of ordinary care, by reason of the negligence of the defendant. It was therefore incumbent on the appellant to establish this allegation by proof, in order that he should be entitled to recover. Calumet Iron & Steel Co. v. Martin, 3 N. E. Rep. 456, (September term, A. D. 1885,) and cases there cited. In the trial court the jury rendered a verdict in favor of appellant for $1,000; and the court, after overruling a motion for a new trial, entered judgment upon that verdict, and afterwards overruled a motion in arrest of judgment. The case was taken to the appellate court of the Second district, by the appeal of the present appellee, where numerous errors of law and fact in the rulings in the trial court were assigned; but that court, disregarding the errors of law assigned, found, and recited in the record, that there was error in the record of the judgment in the circuit court because the appellee in that court (the appellant in this) did not use ordinary care to avoid the injury complained of in the declaration, and the appellant in that court (the appellee in this) was not guilty of wanton or willful injury, and for that error adjudged that the judgment of the circuit court be reversed. The case is now before this court by the appeal of the plaintiff in the circuit court from this judgment of the appellate court.

No question of law is presented for our consideration, for the appellate court decided no question of law adversely to the appellant. It is provided in section 87 of the practice act (2 Starr & C. 1842) that ‘if any final determination of any cause, as specified in the preceding sections, shall be made by the appellate court, as the result, wholly or in part, of the finding of the facts concerning the matter in controversy different from the finding of the court from which such cause was brought by appeal or writ of error, it shall be the duty of such appellate court to recite, in its final order, judgment, or decree, the facts as found, and the judgment of the appellate court shall be final and conclusive as to all matters of fact in controversy in such case.’ We held, in Brown v. City of Aurora, 109 Ill. 165, that the ‘finding of...