The Chicago v. Stumps

• Decision Date: 30 September 1873
• Parties: THE CHICAGO, BURLINGTON AND QUINCY R. R. CO.v.FERDINAND STUMPS.
• Court: Illinois Supreme Court

69 Ill. 409

1873 WL 8481 (Ill.)

THE CHICAGO, BURLINGTON AND QUINCY R. R. CO.

v.FERDINAND STUMPS.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

This was an action on the case, brought by Ferdinand Stumps, by his next friend, A. M. Pence, against The Chicago, Burlington and Quincy Railroad Company, to recover damages for a personal injury. This case was before this court before, and is reported in 55 Ill. 365. All the material facts are stated in the opinion.

Messrs. WALKER, DEXTER & SMITH, for the appellant.

Messrs. ROSENTHAL & PENCE, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

On the first appeal, the judgment in this case was reversed because the verdict was manifestly against the weight of the evidence. The court, in the opinion then delivered, said: “We can come to no other conclusion, from the whole evidence, than that appellee, at the time of his injury, was attempting to climb upon the ladder of one of the cars of the train in motion, and not of the detached car standing upon the track ahead of the approaching train, and that the railway company are not chargeable with any negligence in running against such a car.”

The second trial was had upon substantially the same evidence as the first, with some additional testimony which has relation principally to the questions whether there was a detached car standing on the track, which caused the injury, or whether it was sustained while appellee was attempting to climb up the ladder on another car when the train was in motion.

After the most careful and painstaking consideration of the case, with the additional testimony presented, we can not avoid the conclusion the weight of the evidence is against the theory there was a detached car standing on the track, which was the cause of the injury to appellee. There is a conflict in the evidence which may be accounted for in some degree on the ground most of appellee's witnesses may have been honestly mistaken as to the fact of having seen a detached car at that point on the morning of the 17th of April. This is possible, so far as they are all concerned, except the two little boys, Henry and Herman Moses.

There is no such charitable excuse for the witnesses that testify in behalf of appellant. It is either true there was no detached car on the track that morning, or else five witnesses, four of them men, and the other one old enough to be a bellboy on the train, are all corruptly untruthful. They state facts about which it is not possible for them to be mistaken. Their testimony is either true, or it is wilfully false.

The accident occurred on Brown street, between Luke and Walsh streets. The company's road there is a branch track leading to the lumber district on Twenty-second street. At the point where appellee was hurt, there was but a single track. All the witnesses for appellant concur in the statement, they had been down to the docks that morning, and returned with the engine alone, for the second train they were taking down. It is unusual for any cars to be left standing at that point in Brown street. There was no occasion for leaving a car there. The suggestion of counsel is, it must have become detached by accident, and left standing on the track. This is not possible, if the engine, without cars attached, was brought back over the track a short time previous, as all the witnesses in charge of the work say it was, and no witness states to the contrary.

The general rule is, the jury are the judges of the credibility of the witnesses, but in a case like this, they ought not to be permitted capriciously to disregard the testimony of five unimpeached witnesses, and rely solely on the testimony of the two little boys, aged respectively seven and eleven years, and which is really all the evidence in the case that can not consistently be reconciled, simply because they desired to find a verdict in accordance with their testimony. On this branch of the case, we said all that was deemed necessary in our former opinion, and need not restate our views. C. B. and Q. R. R. Co. v. Stumps, 55 Ill. 365, and cases cited.

The proof shows appellee was only seven years of age when he sustained the injuries. He was too young to be charged with negligence, and could be held to no care other than such as a child of that age could be expected to exercise for its personal safety. The principal question in the case, therefore, is, whether the employees of the company were guilty of culpable negligence in the management of the train.

It is admitted, if the accident happened to appellee while attempting to climb upon the train when in motion, he can not...