The Toledo v. Moore
| Decision Date | 31 January 1875 |
| Citation | 77 Ill. 217,1875 WL 8292 |
| Parties | THE TOLEDO, WABASH AND WESTERN RAILWAY CO.v.LYDIA F. MOORE, Admx. etc. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Piatt county; the Hon. C. B. SMITH, Judge, presiding.
Messrs. NELSON & ROBY, and Mr. A. J. GALLAGHER, for the appellant.
Messrs. CREA & EWING, for the appellee.
This was an action on the case, brought by Lydia F. Moore, administratrix, against the Toledo, Wabash and Western Railway Company, to recover damages for the death of her husband, John H. Moore, who was killed on the 1st day of September, 1871, while in the employ of the railway company as engine-driver, by the explosion of an engine alleged to have been defective and unfit for use upon the road.
A trial was had before a jury, and appellee recovered a judgment of $5000. The court overruled a motion for a new trial, and the railway company bring the record here by appeal.
It is argued by the counsel of appellant, in a very able review of the evidence, that the judgment should be reversed because the verdict on the controverted question of fact, the insecurity of the boiler, is contrary to the weight of the testimony.
The law has provided for the trial of issues of fact before a jury, and it is no part of the duty of an appellate court to interfere with the result, except it may be to prevent manifest injustice.
The rule is, that where there is evidence from which the jury could properly find their verdict, it will not be disturbed, although the evidence might, in the opinion of the appellate court, justify a different result. If there is a total failure of evidence, or if the verdict is manifestly against the weight of the evidence, it is the duty of the court to award a new trial and submit the cause to another jury. C., B. and Q. R. R. Co. v. Gregory, 58 Ill. 274.
Where the record discloses a conflict of evidence, and the witnesses have the same means of information and are equally credible, we can not interfere with the finding unless there should be a clear and manifest want of evidence upon which to base the verdict.
On the question as to the sufficiency and safety of the boiler, in its condition at the time deceased was sent out upon the engine, there is a clear conflict of testimony.
On the one hand, appellee introduced evidence tending to establish the fact that the accident resulting in the death of Moore was occasioned by the boiler being out of repair, which was known by the mechanics of appellant who had charge of the repair shops; that stay-bolts in the fire-box of the boiler were broken, and that the heads of a large number of the stay-bolts had worn off flush with the centre of the sheet and had been tightened up by centre-punching, which rendered the boiler unsafe and insecure. On the other hand, appellant introduced testimony tending to prove that the engine was constructed of the best material and after the most approved style, and that it was in proper repair, and that it was regarded as safe as any engine upon the road.
The witnesses called by appellee and appellant seem to be of equal credibility. On neither side do they seem to be actuated, so far as we can perceive from the record, by prejudice or interest. Many of them are mechanics, skilled in their profession.
Under such circumstances, it was the peculiar province of the jury to weigh the evidence introduced by each party, and from it determine on which side the preponderance was. This was done by the jury, and, so far as we can discover, without passion or prejudice. Such being the case, should we interfere with the finding, it would, in effect, be usurping the province of the jury on a question of fact which the law has intrusted to their decision, which we are not prepared to do.
It is, however, insisted by appellant, that the court erred in giving to the jury appellee's third instruction, which was as follows:
“If the jury believe, from the evidence, that John H. Moore, the husband of the plaintiff, was an engineer, in the employ of the defendant, at the time of his death, as a railroad engineer, on the 1st day of September, A. D. 1871, or thereabouts, and that, while he was running his engine with due care and caution, the boiler of said engine burst and killed said John H. Moore; and if the jury further believe, from the evidence, that it was no part of the duty of said John H. Moore to keep said boiler in repair or to make critical or close examination to ascertain the condition of said boiler; and if the jury believe, from the evidence, that there were agents and servants of the defendant, employed by the defendant, whose duty it was to keep said engine in a reasonably safe condition of repair for the use of said John H. Moore, then, and in such case, the bursting of the said boiler, if the jury believe, from the evidence, that said boiler did burst, would be prima facie evidence of the negligence of the defendant; and, unless the jury believe, from the evidence, that the defendant has, by a preponderance of evidence, rebutted said prima facie negligence, then, and in such case, the jury should find for the plaintiff.”
It was held, in Ill. Cen. Railroad Co. v. Phillips, 49 Ill. 235, that the fact that the boiler exploded was prima facie evidence of negligence, and that, in such a case, the burden of disproving negligence would devolve upon the company. But it will be observed that in the Phillips case the person injured was a bystander, who was not in the employ of the company and in no manner connected with it. Under such circumstances, it was very proper to hold that the explosion made out a prima facie case of negligence, for the reason that the company would be liable if the explosion occurred on account of defects of the engine, or through the negligence of the engine-driver.
But the doctrine announced in the Phillips case can not apply where the action is brought to recover for an injury received by the engine-driver himself.
If the boiler exploded through the negligent manner in which the engine was managed by Moore, or if he knew or had good reason to believe the boiler was unsafe, or if, by the exercise of ordinary skill, he could have learned that the engine was defective, and still used it, there can be...
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