The Chicago v. the Springfield
| Decision Date | 31 January 1873 |
| Citation | 1873 WL 8152,67 Ill. 142 |
| Parties | THE CHICAGO AND ALTON RAILROAD COMPANY et al.v.THE SPRINGFIELD AND NORTHWESTERN RAILROAD COMPANY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the County Court of Menard county; the Hon. COLIN M. ROBINSON, Judge, presiding.
This was a proceeding instituted by the Springfield and Northwestern Railroad Company against the Chicago and Alton Railroad Company and the St. Louis, Jacksonville and Chicago Railroad Company, to acquire the right of way through the right of way of the defendant companies, the Chicago and Alton Railroad Company occupying and using the road of the latter company under a perpetual lease from the same. The facts of the case appear in the opinion of the court.
Mr. N. W. BRANSON, for the appellants.
Mr. LYMAN LACEY, and Mr. S. P. SHOPE, for the appellee.
This is an appeal from the judgment of the county court of Menard county, in a proceeding by appellee to condemn a portion of the right of way of appellants, and ascertain the compensation and damages under the act of 1872. The line of appellee's road, as located, crosses the road and right of way of appellants in the town of Petersburg, in said county. At that point, appellants' railroad is constructed upon a high embankment, and was in operation. It was proposed to construct appellee's road at this crossing twenty feet below that of appellants, carrying the former through the embankment, and thus removing the support of appellants' road for the longitudinal space of about sixty feet, while the road of the latter was in operation. The case was tried by a jury, who assessed appellants' damages at five cents; and for which judgment of condemnation was rendered.
Upon the trial, appellee called as a witness one Kittle, who was the contractor of appellee, and lives in Iowa, and was asked by counsel, against the objections of appellants' counsel, to state how he proposed to cut through the embankment and support appellants' road. His answer was, that he proposed to support appellants' track with timbers, describing them. He was then asked this question by appellee's counsel: “If you put in the cut the work you propose to do and have described, what would be the damages to the defendant?” He answered: “There would be no damage.” The same question was put to six other witnesses offered by appellee, and the same answer returned, to which appellants' counsel excepted.
This evidence was improper, not only upon the ground that the question called for the mere opinion of the witness, upon the assumption that appellee would put in the work when in nowise obligated to do so, but upon the further ground that it was an opinion covering the very question which was to be settled by the jury, and so conclusive of it as to leave to the jury no other duty but that of recording the finding of appellee's witnesses. It amounts to nothing more nor less than permitting the witnesses to usurp the province of the jury. By this we do not mean to be understood as holding that it is incompetent for experts, such as engineers, to give their opinions in this case in respect to matters which may form the proper ingredients of a verdict. But what we mean is, that, where the witness is an expert, and it is competent for him to give an opinion as to such ingredients of a verdict, still it is not competent to ask the opinion of witnesses in such way as to have it cover the very question to be found by the jury. In addition to the fact that none of the witnesses but one were shown to be competent to give an opinion at all, the point of the objection is, that, by the form of the question, the witness was made to take the place of the jury. Cleveland and Pittsburg R. R. Co. v. Ball, 5 Ohio State R. 568.
The witness Kittle was asked by appellee's counsel this question: “Do you expect to keep the work in repair?” Appellants' counsel objected, but the court overruling the objection, he answered: “I do.”
This was manifestly wrong. The contractor's expectations, when there was naught to bind him to make the repairs, could not properly enter into the question of damages.
But the next species of evidence was still worse. Another of appellee's witnesses, of the name of Cluff, was asked this question: “Whose duty would it be to keep the crossing and bridge over the opening in repair after the work you have described is put in?” This was likewise objected to by appellants' counsel, but the court overruled the objection, and the witness answered: “It would be the duty of the Springfield and Northwestern Railroad Company to keep the work in repair after it was finished.” It is needless to say that here the witness was called upon to give, and gave, his opinion upon a mere question of law.
The answers here given, and all of which were improper, constituted the only elements of the verdict and judgment rendered.
On cross-examination of the last mentioned witness by appellants' counsel, he was asked to state what would be the cost of the support which appellee proposed to put in. The court told the witness he need not answer, as it would be only a guess.
Appellants' counsel then...
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