The Ill. Cent. R.R. Co. v. Zang

• Decision Date: 31 March 1882
• Parties: THE ILLINOIS CENTRAL RAILROAD COMPANYv.JACOB ZANG.
• Court: United States Appellate Court of Illinois

10 Ill.App. 594

10 Bradw. 594

THE ILLINOIS CENTRAL RAILROAD COMPANY

v.JACOB ZANG.

Appellate Court of Illinois, First District.

March Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding. Opinion filed May 9, 1882.

Mr. MELVILLE W. FULLER, for appellant; that it was error to admit evidence of plaintiff's poverty, cited Chicago v. O'Brennan, 65 Ill. 160; P. Ft. W. & C. R. R. Co. v. Powers, 74 Ill. 341; Chicago v. Scholton, 75 Ill. 468; Conant v. Griffin, 48 Ill. 410; C. & A. R. R. Co. v. Becker, 76 Ill. 25; same case, 84 Ill. 483; C. & N. W. R. R. Co. v. Moranda, 93 Ill. 302; City of Warren v. Wright, 5 Bradwell, 429; 2 Thompson on Negligence, 1263.

The court erred in giving an instruction which assumed a fact about which there was a dispute: Chicago v. Bixby, 84 Ill. 82; Adams v. Smith, 58 Ill. 417; Small v. Brainard, 44 Ill. 355; M. S. & N. I. R. R. Co. v. Shelton, 66 Ill. 424; Am. Ins. Co. v. Crawford, 89 Ill. 62.

Both railroad companies being, at this place, operated under the rules of the defendant company, plaintiff must be considered as the fellow-servant with defendant's employes, and hence defendant is not liable for injuries occasioned by the negligence of its servants: C. B. & Q. R. R. Co. v. Clark, 2 Bradwell, 600; Clark v. C. B. & Q. R. R. Co. 92 Ill. 43.

Messrs. DEWOLF, MILLER & DEWOLF, for appellee.

BAILEY, J.

This was an action on the case, brought by Jacob Zang against the Illinois Central Railroad Company, to recover damages for a personal injury to the plaintiff, caused, as is alleged, by the negligence of the servants and employes of the defendent. It appears that at the time of the injury the defendant and the Michigan Central Railroad Company were jointly using certain railway tracks belonging to the defendant for running and operating their respective trains of cars, said trains being operated and run under the rules and regulations of the defendant; that the plaintiff was in the employ of the Michigan Central Railroad Company, in the capacity of conductor of a freight train, and was then engaged in switching his train on one of said tracks, and giving the proper signals for that purpose; that while so doing, he was run over by one of defendant's engines, whereby his foot and ankle were so crushed and mutilated as to require amputation.

The evidence shows that the defendant had in use near the place of the accident a certain structure for signaling trains, called a semaphore, and that it also had a certain rule then in force prescribing the manner in which the movements of trains should be controlled by signals made by the arm of said semaphore, and it is alleged that the plaintiff's injury resulted from inattention to said signals on the part of the engineer in charge of the defendant's engine.

On the trial the jury found the defendant guilty and assessed the plaintiff's damages at $3,000, for which sum, and costs, the court gave judgment for the plaintiff. The evidence bearing upon the question of the negligence of the defendant's engineer, and also of the care exercised by the plaintiff, is conflicting. The point is made that the verdict is against the evidence, and much of the argument on both sides is devoted to its discussion; but as the judgment must be reversed on other grounds, we refrain from expressing any opinion as to the preponderance of evidence.

The first instruction given on behalf of the plaintiff was as follows:

“The jury are instructed that while it is true that the party in a suit which has the affirmative of an issue is bound to substantiate such issue by a preponderance of evidence, yet such preponderance of evidence does necessarily consist in the number of witnesses sworn on either side of the case. The jury should take into consideration the opportunities of the several witnesses for seeing or knowing the things about which they testify, their conduct and demeanor while testifying, their interest or lack of interest in the result of the suit, if any has been shown, the probability or improbability of their statements in view of all the other evidence, facts and circumstances proved on the trial, and from all these circumstances determine upon which side is the weight or preponderance of the evidence.”

The difficulty...