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

• Decision Date: 13 June 1885
• Citation: 114 Ill. 244,2 N.E. 185
• Court: Illinois Supreme Court
• Parties: STAFFORD v. CHICAGO, B. & Q. R. Co.

114 Ill. 244

2 N.E. 185

STAFFORD

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

Supreme Court of Illinois.

Filed June 13, 1885.

Appeal from Second district.

Stevens, Lee & Horton and Foster & Raum, for appellant, John A. stafford.

Jack & Moore, for appellee, Chicago, B. & Q. R. Co.

SCHOLFIELD, C. J.

There was no oral argument in this case, and it was submitted to us for decision on the printed arguments filed in the appellate court alone. From this fact we were misled, and assumed that the appellate court had affirmed the judgment of the circuit court, and that it was only expected that we should pass upon the errors of law insisted upon in the arguments in the appellate court. Accordingly we investigated the questions arising thereon, and being of the opinion that the circuit court had, in some of its rulings, erred in that regard against the defendant in that court, we filed an opinion in vacation, on the fifteenth of May, 1885, pointing out wherein we held the circuit court had erred in its rulings, and entered judgment reversing the judgment of the appellate court and remanding the cause. After that opinion was filed, our attention was called to the fact that we had misapprehended the condition of the record, and that the appellate court, instead of having affirmed the judgment of the circuit court, as we had assumed, had reversed that judgment and refused to remand the cause. We thereupon recalled the record in the case, and of our own motion we now order the judgment entered in vacation on the fifteenth of May, 1885, to be vacated and wholly set aside, and that judgment be now entered, as it would then have been entered had we not then misapprehended the true state of the record, affirming the judgment of the appellate court.

The appellate court find and recite in the record the facts to be different from what they were found to be by the circuit court, and reverse the judgment of the circuit court because of this finding, waiving entirely the question whether the circuit court erred in its rulings upon questions of law, as contended by the defendant in that court. The recital in the record of the appellate court of the findings of that court upon the questions of fact is this: ‘This court finds the facts to be that the appellee was guilty of contributory negligence, and want of ordinary care, which led to the injury complained of in the declaration, without which contributory negligence and want of care such injury would not have occurred, in this, to-wit: That the incompetency and unskillfulness of the engineer, Robert Mack, in manner complained of in the declaration, was as well known to appellee at least thirty days prior to and up to the time of the reception of the said injury by appellee, as it was or could have been known to the appellant, and that such knowledge was on the part of appellee full and complete; and the court further find that at no time prior to the time the injury was received in manner charged in the declaration did the appellee notify the appellant of the incompetent and unskillful character of said engineer, Mack, nor of his deficiency as such engineer in any way, nor exact or receive a promise from appellant that it would discharge...