The Lake Erie v. Zoffinger

• Decision Date: 14 June 1883
• Citation: 107 Ill. 199,1883 WL 10289
• Parties: THE LAKE ERIE AND WESTERN RAILWAY COMPANYv.JOHN ZOFFINGER.
• Court: Illinois Supreme Court

107 Ill. 199

1883 WL 10289 (Ill.)

THE LAKE ERIE AND WESTERN RAILWAY COMPANY

v.JOHN ZOFFINGER.

Supreme Court of Illinois.

Filed at Springfield Jun. 14, 1883.

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of McLean county; the Hon. N. J. PILLSBURY, Judge, presiding. This was an action on the case, brought by appellee, against the appellant, in the McLean circuit court, where a trial was had resulting in a verdict and judgment in favor of the plaintiff, for $3500, and costs. On the trial the defendant sought to show that the plaintiff was intoxicated at the time he was injured, which the plaintiff denied. The defendant called Mr. Lancaster, who testified that he saw plaintiff in Homath's saloon, and thought he was drunk, and heard him ask the bar-keeper for more liquor, and then the witness was asked, “What did the bar-keeper say?” The court sustained an objection to the question. The defendant then offered to prove by the witness that the bar-keeper said to plaintiff, “No, you have had enough,” but the court excluded it. The other material facts appear in the opinion.

Mr. BENJAMIN D. LUCAS, and Messrs. WELDON & MCNULTA, for the appellant:

The burden of proving that he exercised ordinary care was on the appellee. Dyer v. Talcott, 16 Ill. 300; Chicago, Burlington and Quincy R. R. Co. v. Hazzard, 26 Ill. 377; Chicago, Burlington and Quincy R. R. Co. v. Damerell, 81 Id. 454; Kipperly v. Ramsden, 83 Id. 355; Indianapolis and St. Louis R. R. Co. v. Evans, 88 Id. 63; President, etc. v. Carter, 2 Bradw. 34; Chicago City Ry. Co. v. Lewis, 5 Id. 245.

Declarations of a third party to plaintiff about a matter material to the issue are competent evidence. Wharton on Evidence, (2d ed.) sec. 1136; Jewett v. Banning, 23 Barb. 15; McClerhan v. McMillon, 6 Pa. St. 366.

The negligence complained of must have caused the injury. Chicago and Rock Island R. R. Co. v. McKean, 40 Ill. 218; Chicago, Burlington and Quincy R. R. Co. v. Lee, Admr. 60 Id. 504; Chicago, Burlington and Quincy R. R. Co. v. VanPatton, 64 Id. 514; Chicago, Burlington and Quincy R. R. Co. v. Lee, Admr. 68 Id. 583. If appellee failed to exercise ordinary care he can not recover. Dyer v. Talcott, 16 Ill. 300; G. C. W. R. R. Co. v. Jacobs, 20 Id. 478; Grand Tower Manf. and Trans. Co. v. Hawkins, 72 Id. 388; Chicago and Alton R. R. Co. v. Becker, 76 Id. 26; Chicago, Burlington and Quincy R. R. Co. v. Harwood, 80 Id. 90; Illinois Central R. R. Co. v. Green, 81 Id. 24; Kipperly v. Ramsden, 83 Id. 357; Illinois Central R. R. Co. v. Hetherington, Id. 515; Indianapolis and St. Louis R. R. Co. v. Evans, 88 Id. 64; Chicago and Northwestern R. R. Co. v. Scates, 90 Id. 587; Illinois Central R. R. Co. v. Patterson, 93 Id. 294.

The law is, that unless appellee was struck at the street crossing, he can not recover. Illinois Central R. R. Co. v. Hetherington, 83 Id. 510; Illinois Central R. R. Co. v. Godfrey, 71 Id. 500; Lake Erie and Western Ry. Co. v. Zoffinger, 10 Bradw. 252; Jefferson and Madison R. R. Co. v. Goldsmith, 47 Ind. 43; Gill v. Pennsylvania R. R. Co. 59 Pa. St. 129; Railroad Co. v. Norton, 12 Harr. 465; Railroad Co. v. Mulheim, 81 Pa. St. 366.

Mr. N. B. REED, and Messrs. FIFER & PHILLIPS, for the appellee:

The declaration of the bar-keeper to the plaintiff was clearly incompetent to prove the fact sought to be shown thereby. 1 Greenleaf on Evidence, sec. 199; Child v. Grace, 2 Carr. & Payne, *193; Commonwealth v. Kinney, 12 Metc. 235.

The negligence alleged was, first, there was no light on the west end of the train at the time it crossed Howard street; second, the bell was not rung; third, the train, when approaching, was running at a high rate of speed; and fourth, there was no person on the west end of the train to watch the track or give warning of danger. The jury must have found some of these allegations of carelessness were proven, and if so, the recovery was rightful. This case has been tried three times, each and every trial resulting in a verdict for the plaintiff.

Per CURIAM:

This action was brought by John Zoffinger, against the Lake Erie and Western Railway Company, to recover for personal injuries sustained by plaintiff, caused by a train of cars defendant was moving over the track of the Indianapolis, Bloomington and Western railroad, in the city of Bloomington. On the trial plaintiff recovered a judgment for $3500, on which the circuit court rendered judgment against defendant. That judgment was affirmed, on appeal, in the Appellate Court, and defendant brings the case to this court on its further appeal.

After a careful consideration of the entire record, no tangible ground is perceived on which a reversal of the judgment in this case can be based. There was a direct conflict in the testimony touching almost every material fact in the case; but the jury found the issues in favor of plaintiff, and that implies a finding of every fact the evidence tends to establish in favor of plaintiff that was necessary to sustain the action. The Appellate Court, by its judgment of affirmance, having found the facts the same way, its findings are, of course, conclusive on this court, under the statute.

There is evidence tending to show plaintiff was...