The Chicago v. Mckean

• Citation: 40 Ill. 218,1866 WL 4459
• Parties: THE CHICAGO AND ROCK ISLAND RAILROAD COMPANYv.JAMES MCKEAN.
• Decision Date: 30 April 1866
• Court: Supreme Court of Illinois

40 Ill. 218

1866 WL 4459 (Ill.)

THE CHICAGO AND ROCK ISLAND RAILROAD COMPANY

v.JAMES MCKEAN.

Supreme Court of Illinois.

April Term, 1866.

APPEAL from the Circuit Court of Bureau county; the Hon. MADISON E. HOLLISTER, Judge, presiding.

The opinion of the court contains a sufficient statement of the case.

Mr. GEORGE C. CAMPBELL, for the appellants.

Mr. GEORGE W. STIPP and Mr. OLIVER C. GRAY, for the appellee. Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action on the case brought to the Bureau Circuit Court by James McKean, against the Chicago and Rock Island Railroad company, to recover damages for an injury occasioned by a collision of a train of cars run by the defendants with a two-horse team and wagon of the plaintiff.

The injury was alleged to be in killing the horses, injuring the wagon and harness, and rendering the plaintiff “a cripple for life by the loss of a large portion of his left foot.” The jury rendered a verdict for the plaintiff of $5,875, on which, after denying a motion for a new trial, the court entered judgment.

To reverse this judgment, the case is brought here by appeal, a bill of exceptions having been duly signed, containing all the testimony, and various errors are assigned on the record.

The first point made by appellants is, the refusal of the court to award a change of venue on notice and affidavit filed.

There being no exception taken to the ruling of the court on this point, it is not before us for consideration, and the same may be said in regard to the second point, refusing to suppress portions of certain depositions offered by the appellee. There was no exception taken to this ruling.

The first exception taken, which appears on the record, is in overruling the motion for a new trial, and this brings before us all the evidence in the case, and on the force to which it is entitled, we are required to pronounce.

By the common law, and the practice under it which prevailed for ages, the refusal to grant a new trial could not be assigned as error. Such was the law and the practice in this State up to 1837, when the legislature, in its wisdom, declared by an act of July 21, of that year, that exceptions taken to opinions or decisions of the Circuit Courts overruling motions for new trials should be allowed, and the party excepting might assign for error any opinion so excepted to. Laws of 1837 (second sess.) 109.

This statute bestows upon this court the power to supervise every verdict that may be rendered in any of the courts of record of this State. The evidence upon which they are found may be brought in review before this court, for it will not investigate the question of a new trial moved for, on account of defective evidence, unless the whole of the evidence is shown in the record brought here. McKee v. Ingalls, 4 Scain. 30; Clark v. Willis, 16 Ill. 61.

The policy of this legislative enactment has been, and may well be questioned, as it brings before a tribunal, other than a jury, that which, in the institution of trial by jury, was for their determination alone, that is, the facts of a case. An appellate court was, before the passage of that act, judge of the law only, to decide wherein, in the case brought before it, the rules of law had been misapplied or violated. The old and honored maxim once was, “the judges respond to the law, the jury to the facts,” but now, by this innovation, the judges of an appellate court have as much power over the facts as the jury had in the first instance, for it is undeniable this court may set aside a verdict if the facts fail to satisfy it of its propriety. This control, so bestowed upon this court, is unqualified and unlimited, and therefore we say, the verdict of every jury is subject to the control of this court.

Yet, with a view to abridge this power, very soon after the passage of the act, this court laid down certain rules by which it would be governed in disposing of such cases.

The first case which came to this court, after the enactment of this statute, was the case of Smith v. Shultz, at December Term, 1838, by appeal (1 Scam. 490), where it was held, the court would not grant a new trial, when, in its opinion, substantial justice had been done, though the law arising on the evidence would have justified a different result. In subsequent cases this rule was recognized, that unless the verdict of the jury is manifestly against the weight of evidence it will not be disturbed. Allen v. Smith, 3 Scam. 97; and followed by the cases of Ellis v. Locke, 2 Gilm. 459; Evans v. Fisher, 5 Id. 572; Dawson v. Robbins, Id. 72; Mann v. Russell, 11 Ill. 586; Welden v. Francis, 12 Id. 460; Town of Vinegar Hill v. Busson, decided at this term.

This rule is also well established, where the verdict has been given contrary to the evidence, or where there is no evidence at all to support it, this court will grant a new trial. Lowry v. Orr, 1 Gilm. 70; Scott v. Blumb, 2 Id. 595; Culbertson v. City of Galena, Id. 129; Gordon v. Crooks, 11 Ill. 142; Keaggy v. Hite, 12 Id. 99; Baker v. Pritchett, 16 Id. 66; Higgins v. Lee, Id. 495; and other subsequent cases closing with the case of Corgan v. Frew, 39 Ill. 31; in which last case it was said in addition, “or where the jury have misapprehended the law or the facts, or both,” the verdict will be set aside.

To determine correctly the question of a new trial by the appellate court, on the evidence, it is requisite, therefore, that all the evidence should appear in the record, as held in McKee v. Ingalls, and Clark v. Willis, supra.

Another rule equally important is this, that the court will not disturb a verdict upon facts, for any slight preponderance in testimony. Bloomer v. Denman, 12 Ill. 240; Goodell v. Woodruff, 20 Id. 191. But if there is a strong preponderance, the verdict will be set aside, especially where apparent injustice has been done. Chase v. Debolt, 2 Gilm. 371; Boyle v. Levings, 24 Ill. 223; Clement v. Bushway, 25 Id. 200.

Again, this court said, a verdict will not be disturbed unless the finding is clearly wrong. French v. Lowry, 19 Ill. 158; Bush v. Kindred, 20 Id. 93; Carpenter v. Ambroson, Id. 170; School Inspectors of Peoria v. Hughes, 24 Id. 231; Cross v. Carey, 25 Id. 562. And, further, that a verdict will not be set aside where the evidence is conflicting, even though it may be against the weight of evidence. Morgan v. Ryerson, 20 Ill. 343; Martin v. Ehrenfels, 24 Id. 189; Pulliam v. Ogle, 27 Id. 189. And in actions ex delicto, it is seldom that courts will interfere with the finding of a jury. Fish v. Roseberry, 22 Id. 288.

This right of revising motions for new trials on the evidence preserved in the record was conferred on the appellate court for some practical purpose; it was not intended it should be nugatory, but it was supposed, that, by its fearless and wise exercise by such a court, benefits would result to the citizen, and some protection be afforded to parties litigating, who had been or might be in the power of a tribunal composed of twelve men, wholly irresponsible, the common law writ of attaint having been abolished,--a tribunal which has not always been found very deeply imbued with a knowledge of the law, when called on to apply its principles to the case before it,--a tribunal not remarkable, as usually selected, for its skill in analysis, or in the examination of facts, or in estimating their force, and made up from persons who are not, as daily experience shows, wholly devoid of prejudice, or entirely uninfluenced by passion, or unaffected by popular opinion.

The points made by the appellants on this record, and most elaborately urged upon the attention of the court, are this refusal of the court to award a new trial on the evidence, which is all preserved in the record, and for the amount of damages allowed, which they insist are outrageously excessive.

The counsel for appellants say that the appellee, by his own proof, was, at the time of the accident, in the full possession of all his faculties and perfectly sober, and that the accident could not have happened without his own negligence. We are free to admit there is much evidence tending to show the accident was the result of the negligence of appellee. It is in proof appellee was well acquainted with this crossing; but appellee insists, as the warning board was not up at the time, the benefit of which, if it be any to one acquainted with the crossing, was lost to appellant, and negligence for suffering it to be down and placed against the fence is imputable to appellants. The law requires, in the most positive terms, that such boards shall be placed and constantly maintained across each public road or street where it is crossed by a railroad on the same level, as in this case. The law demands that these boards shall be elevated so as to be easily seen by travelers, and on each side of them there shall be painted, in capital letters of at least the size of nine inches each, the words, “Railroad crossing--look out for the cars while the bell rings or the whistle sounds.” This is a requirement of law with which all railway companies are bound to comply, however useless such boards may be to travelers accustomed to the crossings, or to cautious men who will not, ordinarily, fail to “look out” at such places, whether the bell rings or whistle sounds, or give no signal.

This signal is also an imperative demand of the law. A bell of at least thirty pounds weight, or a steam whistle, must be placed on each locomotive, and it must be “rung or whistled” at the distance of at least eighty rods from the crossing, and be kept ringing or whistling until its locomotive shall have crossed the road. The penalty for failing to observe this very necessary regulation, is fifty dollars for every neglect, to be paid by the railroad company, one-half thereof to go to the informer, and the other half to the State; and the corporation is also made liable for all damages which shall be...