The Toledo v. Williams

• Court: Illinois Supreme Court
• Writing for the Court: SCHOLFIELD
• Citation: The Toledo v. Williams, 77 Ill. 354, 1875 WL 8323 (Ill. 1875)
• Decision Date: 31 January 1875
• Parties: THE TOLEDO, WABASH AND WESTERN RAILWAY CO.v.EDWARD H. WILLIAMS.

77 Ill. 354

1875 WL 8323 (Ill.)

THE TOLEDO, WABASH AND WESTERN RAILWAY CO.

v.EDWARD H. WILLIAMS.

Supreme Court of Illinois.

January Term, 1875.

APPEAL from the Circuit Court of Morgan county; the Hon. CYRUS EPLER, Judge, presiding.

This was an action on the case, brought by Edward H. Williams against The Toledo, Wabash and Western Railway Company, to recover damages for an alleged wrongful assaulting, beating, etc., of the plaintiff by a servant of the defendant. A trial was had, which resulted in a verdict and judgment in favor of plaintiff for $50. On the cross-examination of R. E. Goodrich, one of defendant's witnesses, the following questions were put to the witness by plaintiff's counsel:

“So your memory is peculiarly shaky on putting men out of that room?” The question was objected to as disrespectful and offensive, and objection overruled. Before the question was answered, the following was asked: “Come down to bed-rock, and answer.” The same objection was made as before, and overruled. The witness answered: “When a person is to be put out, I call another to do that duty.” Question: “If Williams had been a little fellow, you would have done it yourself?” Same objection as before, and overruled. Question: “As I understand it, the T., W. and W. R. W. Co. sell tickets there, and there is no other place in Quincy, unless a fellow jumps aboard after the train starts?” Objected to as irrelevant and offensive. Objection overruled. Question: “I understand you drive passengers around to another room to get water?” Objected to as offensive, not in proper form, and not warranted by answers of the witness. Objection overruled. The material facts of the case are stated fully in the opinion.

Messrs. DUMMER & BROWN, for the appellant.

Messrs. EPLER & CALLON, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Appellee's declaration contains two counts. The substance of his cause of action, as therein stated, is, that, having purchased of appellant a ticket entitling him to be carried by it from Quincy to Jacksonville, and while awaiting the departure of appellant's train, at Quincy, in a room set apart by it and used for passengers intending to depart by its trains, he was assaulted by the defendant's servant, one R. E. Goodrich, by whom he was there insulted, beaten, etc.

The objection that appellant could not be sued for the injuries complained of, in Morgan county, if tenable at all, should have been raised before judgment. The same rule of construction must, in this respect, be applied to section 2 of the act in force July 1st, 1872, (Laws of 1872, p. 338,) as has been held to apply to the second section of the Practice act, in the revision of 1845. Since Kenney et ux. v. Greer, 13 Ill. 432, (decided at the December term, 1851,) that section has uniformly been construed as giving the defendant a privilege, merely, which he will be regarded as having waived, unless he makes his objection in apt time. Gillilan et al. v. Gray et al. 14 Ill. 416; Waterman v. Tuttle, 18 Id. 292; Hamilton v. Dewey, 22 Id. 490; Hardy et al. v. Adams et al. 48 Id. 532. Nor do we consider the objection well taken, that the evidence should have shown that the injuries received were inflicted by the identical servant named in the declaration. We are of opinion that so much of the declaration as gives the name of such servant, is surplusage. The only fact material was, that the alleged wrong was done by some one occupying, as to the wrongful act, the relation of servant to appellant. If appellee received the injury complained of, from a person thus representing appellant, its liability was fixed, and could not be affected by the circumstance that the servant was known by some other name than Goodrich.

We are of opinion, however, on the evidence, appellee has no cause of action, and the judgment should have been against him. His own evidence is, after getting a ticket, he went into the ladies' room to wait for a train. After he had been in there fifteen or twenty minutes, he saw the door leading into the little room open; that two or three little girls and a little boy were in there, and he went in to get some water. “Some one said, roughly: come out of there; said so twice; I looked around and saw a gentleman whom I had seen around the building. I said to him I wanted a drink. He said it was no place for me, and wanted me to get out. I was not in the habit of being talked to in that way, and told him so. He said I must go out or he would put me out. I...