The Hannibal v. Martin

• Court: Appellate Court of Illinois
• Writing for the Court: HIGBEE, J.
• Citation: The Hannibal v. Martin, 11 Ill.App. 386, 11 Bradw. 386 (Ill. App. 1882)
• Decision Date: 31 May 1882
• Parties: THE HANNIBAL AND ST. JO RAILROAD COMPANYv.ELIZABETH MARTIN.

11 Ill.App. 386

11 Bradw. 386

THE HANNIBAL AND ST. JO RAILROAD COMPANY

v.ELIZABETH MARTIN.

Appellate Court of Illinois, Third District.

May Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Adams county; the Hon. J. H. WILLIAMS, Judge, presiding. Opinion filed September 26, 1882.

Messrs. MARSH & MCFADON, for appellant; that it was error to admit in evidence the statements of the conductor, made after the accident happened, cited 1 Greenl'f's Ev. § 113; Story on Agency, § 134; Angell & Ames on Corporations, § 309; Verry v. B. C. R. & M. A. Co. 47 Iowa, 549; M. C. R. R. Co. v. Gougar, 55 Ill. 506; Lane v. Bryant, 9 Gray, 247; C. & N. W. R. R. Co. v. Fillmore, 57 Ill. 266; Furst v. Second Ave. R. R. Co. 72 N. Y. 544; C. B. & Q. R. R. Co. v. Riddle, 60 Ill. 534; C. B. & Q. R. R. Co. v. Lee, 60 Ill. 503; Luby v. H. R. R. R. Co. 17 N. Y. 131; Pittsburg R. R. Co. v. Theobald, 51 Ind. 246; Rogers v. McCune, 19 Mo. 562; Whitaker v. Eighth Ave. R. R. Co. 51 N. Y. 299; Robinson v. R. R. Co. 7 Gray, 97.

Opinions of experts as to the probable results of plaintiff's injuries are not admissible: Hutchinson on Carriers, § 805; Shearman & Redfield on Negligence, § 597.

Damages for mental suffering can not be allowed: 2 Greenl'f's Ev. § 267; Ill. Cent. R. R. Co. v. Sutton, 53 Ill. 399.

It was error to instruct the jury that they might find as plaintiff's damages the expense of being cured, there being no evidence as to such expenses: Ill. Cent. R. R. Co. v. Frelka, 9 Bradwell, 605; Ill. Cent. R. R. Co. v. Benton, 69 Ill. 175; Nichols v. Bradsby, 78 Ill. 44.

The fact that plaintiff may have heard one of appellant's servants announce that the train was ready did not justify her in going upon the train: C. B. & Q. R. R. Co. v. Sykes, 96 Ill. 172; C. & A. R. R. Co. v. Randolph, 53 Ill. 514.

The damages are excessive: C. R. I. P. R. R. Co. v. Payzant, 87 Ill. 130; Kepperley v. Ramsden, 83 Ill. 356.

Messrs. EWING & HAMILTON, for appellee; that the statements of the conductor were admissible as part of the res gestæ, cited Abbott's Trial Evidence, 44; 1 Greenl'f's Ev. § 113; Bank of Monroe v. Field, 2 Hill, 445; Bass v. C. & N. W. R. R. Co. 42 Wis. 654; H. & B. M. R. R. Co. v. Decker, 82 Penn. 119.

These statements were not material and did not produce the verdict, and therefore were not error: Deniston v. Hoagland, 67 Ill. 265; Thompson v. McLaughlin, 66 Ill. 407; Creote v. Wiley, 83 Ill. 444; Carpenter v. Davis, 71 Ill. 396.

The experts had a right to give their opinions as to the probability of a recovery: Abbott's Trial Ev. 600; E. N. N. R. R. Co. v. Henderson, 51 Penn. 320; Bryant v. Trimmer, 47 N. Y. 96; Creote v. Wiley, 83 Ill. 444.

The jury may consider plaintiff's suffering of body and mind in estimating damages: I. & St. L. R. R. Co. v. Stables, 62 Ill. 320.

A passenger has a right to rely upon the reasonable directions of the conductor: C. B. & Q. R. R. Co. v. Sykes, 96 Ill. 172.

The damages are not excessive: Ill. Cent. R. R. Co. v. Parks, 88 Ill. 373; Ill. Cent. R. R. Co. v. Cunningham, 67 Ill. 316; C. W. Div. Ry. Co. v. Hughes, 69 Ill. 170; C. & A. R. R. Co. v. Wilson, 63 Ill. 167; C. & A. R. R. Co. v. Murray, 71 Ill. 601; P. C. & St. L. R. R. Co. v. Thompson, 56 Ill. 138.

HIGBEE, J.

This suit was brought by appellee to recover for a personal injury received by her while a passenger on appellant's cars.

On the 16th day of February, 1880, appellee and her husband bought coupon tickets entitling them to a passage by rail from Canton, Illinois, to Nickerson, Kansas. One coupon of the tickets was from Quincy to Kansas City, over appellant's road.

On the evening of the same day appellee and her husband arrived at Quincy, and were there detained until ten o'clock of the same night, when they left on appellant's road for Kansas City.

Appellant has no track or depot on the east side of the Mississippi river, but after crossing the bridge, its passenger trains run into the depot of the Chicago, Burlington & Quincy Railroad Company, over its track. By agreement of parties, all switching in the yard and making up trains is done by the employes of the latter company, and when the trains are made up and ready to leave, appellant's employes then take charge of them.

When the train was being made up, some one, whom appellee thinks she afterward saw on the train as conductor, announced that the train was ready, whereupon appellee and her husband followed several others to the south end of the platform and entered the rear car. Finding the same full of passengers, they passed on to the next car in front, and not finding any vacant seats, went on to the north end of the third car where appellee found a seat, but her husband and ten or fifteen other passengers could get no seats and had to stand up. A brakeman told the passengers to be patient a moment and they would put on another car. Just then a car was backed down against the one appellee was on, and the brakeman announced that the car was ready, when appellee attempted to enter the same and fell between the cars and was severely injured.

At the time of the accident the front cars were attached to the switch engine, and an effort being made to couple the cars, which was then unsuccessful, but soon after accomplished.

The first assignment of error, we will notice, questions the action of the court, in modifying appellant's fifteenth instruction before giving the same to the jury. The substance of that instruction was, that if the jury believed from the evidence that appellant had, on the night appellee was injured, a platform in the Chicago, Burlington & Quincy depot at Quincy, designated by it for the reception of passengers, and that appellee was injured while said train was being made up and before it had been put in position to receive passengers, then that the relation of passenger and carrier did not at the time of the injury subsist between appellant and appellee, and the jury should find for the defendant.

The court refused to give this instruction as asked, but gave it as modified by adding the following words: “Unless the jury further believe from the evidence that the agent or servant of the defendant had notified plaintiff that said train was ready for the reception of passengers, and that in pursuance of such notice, said plaintiff had got on said train of cars before she received the alleged injury, if the jury believe from the evidence she received any injury.”

The three rear cars stood on the track by the side of the platform used by the Hannibal & St. Jo. Railroad, and the evidence tends strongly to show that at or about the usual time of the departure of the train, it was announced by one of the employes of appellant, most probably, from the evidence, the conductor, that the train was ready; when appellee and her husband followed several others aboard of the cars and found all three of them filled with passengers.

If a person, holding a ticket entitling him to a passage on the train, may not enter the cars and become the passenger of the common carrier under such circumstances, it is difficult to see just when and how the relation of passenger and carrier could be created.

We see no error in the modification of this instruction.

Appellant also assigns for error, the giving appellee's third instruction, as follows: “Although the jury may believe from the evidence that the defendant's train of cars, testified about by the witnesses in this case, was made up by the servants and employes of the Chicago, Burlington & Quincy Railroad Company, and that such servants and employes had the control and management of said cars until said train was made up and ready to start on its run over the defendant's road, still, if the jury...