Wagner v. Chicago, R.I.&P. Ry. Co.

• Decision Date: 21 February 1917
• Docket Number: No. 11090.,11090.
• Citation: 115 N.E. 201,277 Ill. 114
• Court: Illinois Supreme Court
• Parties: WAGNER v. CHICAGO, R. I. & P. RY. CO.

277 Ill. 114

115 N.E. 201

WAGNER

v.CHICAGO, R. I. & P. RY. CO.

No. 11090.

Supreme Court of Illinois.

Feb. 21, 1917.

Appeal from Appellate Court, Second District, on Error to Circuit Court, La Salle County; Joe A. Davis, Judge.

Action by William F. Wagner against the Chicago, Rock Island & Pacific Railway Company. There was a judgment for plaintiff, and defendant appealed to the Appellate Court, which affirmed, and defendant sues out writ of certiorari to review the judgment of the Appellate Court. Judgment of Appellate Court affirmed.William D. Fullerton, of Ottawa, and A. B. Enoch, of Chicago, for plaintiff in error.

F. H. Hayes, of Woodstock, and Butters & Clark, of Ottawa, for defendant in error.

CARTWRIGHT, J.

The Appellate Court for the Second District affirmed a judgment for $8,000 recovered in the circuit court of La Salle county by William Wagner, the defendant in error, against the Chicago, Rock Island & Pacific Railway Company, plaintiff in error, and this court granted a writ of certiorari for a review of the judgment of the Appellate Court.

The action was for damages in the loss of a part of the plaintiff's foot while coupling cars as foreman of a switchingcrew in the service of the defendant. There were four counts in the declaration, and an additional count was filed during the trial. The plea was the general issue. The court directed a verdict for the defendant on the third and fourth counts and the additional count, and submitted the first two counts to the jury, which returned a verdict of guilty.

The errors assigned are argued indiscriminately, but when reduced to their proper order the first question to be considered is whether the court erred in denying the motion for a new trial on account of alleged errors occurring in the course of the trial.

The undisputed facts necessary to be understood are as follows: The defendant's railroad runs easterly and westerly through the city of Morris, in Grundy county, and a switching crew is stationed there to serve the industries located along the tracks and to do necessary switching at the station. The plaintiff was the foreman of the switching crew, which consisted of himself, two switchmen, an engineer, and a fireman. On August 21, 1912, he undertook to couple two cars together which were being moved in a necessary switching operation. One of the cars was equipped with what is called a ‘Major’ coupler, which was defective and which the plaintiff had closed because it would not work. As that car was pushed toward another car equipped with what is called a ‘Gould’ coupler, the plaintiff attempted to adjust the knuckle of that coupler so that the coupling could be made. He was on the south side of the car, where the pin lifter was, and he pulled on it with both hands, but it was defective, and he was not able to open the coupler. He then went around on the north side of the car and kicked the coupler to loosen it. As the cars came together his foot was crushed and was amputated midway between the toe and heel.

The declaration alleged that the Gould coupler was defective and charged the injury to have been occasioned by the defective condition of that coupler, and it made no reference to the Major coupler. It is contended that the court erred in admitting evidence that the Major coupler was also in a defective condition because it was not the cause of the injury. The coupling could have been made if either of the couplers had been in order, and the fact that the Major coupler had been closed because unfit for use was material to the issue, and there was no error in the ruling.

The next ruling complained of is that the court refused to strike out testimony of the plaintiff that the cars were loaded with cotton seed meal and came from Tennessee, when it appeared on cross-examination that he only knew where they came from by looking at the waybills. The ground of the objection was that the waybills were the best evidence. The rule of law is that one who is called upon to prove the contents of a writing must produce the writing or account for his failure to do so. But the waybills did not come within that rule, not being documents executed between the parties to the suit or amounting to anything more than memorandum where the cars came from, of the same nature as marks on the cars tending to prove that the cars were employed in interstate commerce. It was not necessary to produce the waybills or records. Devine v. Chicago, Rock Island & Pacific Railway Co., 266 Ill. 248, 107 N. E. 595, Ann. Cas. 1916B, 481.

It is further urged as a matter of law that if the cars had been employed in interstate commerce they had been delivered, and the interstate character of the shipment had ceased. The Gould car had been taken to the Quaker Oats mill and partly unloaded, and it became necessary to move it in its partly unloaded condition, but it was again to be returned to complete the unloading and was then to be loaded by the Quaker Oats Company for a shipment to Pennsylvania. The service of the car in interstate commerce had not been completed and the car was still engaged in interstate commerce.

[4]The court permitted the plaintiff to exhibit his foot to the jury,...