Chicago, Burlington & Quincy Railroad v. George

'Walker, J. This was an action on the case brought by George against the Chicago, Burlington and Quincy Railroad Company, for injuries to his person, which were alleged to have been received by the negligence of the railroad company in running their cars. The injury was occasioned by a collision between the cars of the Galena and Chicago Union Railroad Company and the Burlington, Chicago and Quincy Railroad Company, near Wheaton, in Du Page county, on the 27th of August, 1857. The declaration is for negligence, and is.in the usual form. The defendants plead the general issue, and the case was tried at the December term, 1857, by the Court of Common Pleas of the city of Aurora, and a jury. The jury found a verdict for plaintiff for the sum of $1,300. Defendants entered a motion for a new trial, which was overruled by the court, and judgment was rendered on the verdict, from which defendant appeals to this court. It is urged that the court below erred in permitting witnesses to testify to the time the trains were due at Wheaton, when there was a time table at that place, and the witnesses testified they had got their information of when the trains were due from that time table. The issue to be determined was, whether the defendant was in fault; and it was pertinent to that issue to know when the several trains were due at that place. This was a fact to be established, and it might be done in either of several ways. It might be proven by the admissions of the defendant, or by proving that the trains had regularly arrived at that point, at a particular time, before this collision ; and it might have been proven by producing and laying the proper foundation for the admission of this time table. The question was not what was the contents of this printed paper, but when should the cars have arrived at that point. The witnesses testify that the defendant’s train from the east was due at ten o’clock and forty minutes in the forenoon, and the Galena train, from the west, was due at three o’clock and thirty or thirty-two minutes in the afternoon, and that, for some time previous to the collision, they had run to their time. When it is proven that the trains of the two companies using this road had previously arrived regularly at a particular time, the conclusion is irresistible that they had been running according to their regulations. It was, by such evidence, as satisfactorily proven as it could have been by producing the time table. The plaintiff was not a party to the contents of that paper, and it, at most, was only a printed statement, made by defendant, and as such, plaintiff was not bound to rely upon it as evidence. The written statement of facts, by a party to the suit, is not admissible as evidence, unless the opposite party makes it evidence ; and if the other party sees proper to prove the fact without using such written statement, he has no right to complain. The witnesses’ statements that they derived their information from the time table, was a mere inference, which the other portions of their evidence show to have been such. They testify that they were employees of the road at this place, and that the trains previously had arrived regularly at the times named, and their inferences should not be received to the exclusion of the facts testified to by them. It was urged that the witness Lewis was improperly permitted to testify whether it was necessary for the physicians to have continued their attendance on plaintiff as long as they did. Even if this was a question of skill, the physicians had testified to having attended on plaintiff, and from that testimony, the inference is raised that it was necessary. But, in a question of, this kind, any person of intelligence is capable of judging of the necessity of medical advice and services. It is universally acted upon by all classes of mankind, and we are not disposed to lay down a rule that none but a physician is competent to prove that a person is sick, or so sick as to require medical advice. When it comes to determine the nature or the effects of disease, it is different. These are scientific questions that none but those skilled in the science are competent to determine. Numerous errors are assigned for refusing to give instructions asked by defendant of the court below. To determine the correctness or incorrectness of the judgment of the court in refusing to give the instructions, it will be necessary to advert to the facts proven on the trial of the case. It appears, from the evidence, that the defendant and the Galena and Chicago Union Railroad Company used this portion of the road jointly; that the plaintiff was a passenger on the defendant’s cars, and was injured by having his collar bone broken, etc.; that this train of defendant’s was due from the east at ten o’clock and forty minutes in the forenoon, and that the Galena train was due from the west at three o’clock and thirty or thirty-two minutes in the afternoon; that the Galena train was due at Wheaton in two or three minutes after the defendant’s train passed that point; that when the collision occurred, the switch tender was expecting and listening for the collision. The evidence showed that plaintiff was in the front part of the forward passenger car when he received the injury complained of, and this is the only evidence as to how the plaintiff acted, or what he did, at the time he was injured. The rule is well settled, and universally acquiesced in, that common carriers of property are held liable for all accidents and injuries it may receive, except from the acts of God and the enemy of the country. And it seems to be the rule that carriers of passengers for hire are bound to use the utmost care and diligence in providing for their safety, by the use of sufficient and suitable modes of conveyance, in order to prevent those injuries which human care and foresight can guard against. Having thus provided the means of transportation, they are, in like manner, to use the utmost care and diligence in managing, directing and using those means, so that, as far as human care and foresight can go, they may guard against injury. Having done all that human care and foresight can do reasonably, and injury happening, they are not liable. Pure accidents will excuse them. They are not liable at all events, and the negligence of the passenger producing the injury, without their fault, will also relievo them from liability. But the magnitude of the value of human life is such that it requires of carriers of passengers this degree of care and foresight. This view of their liability will be found to be supported by the cases of Christe v. Briggs, 2 Camp. R. 79 ; Aslen v. Heeren, 2 Esp. R. 533 ; Ingalls v. Bills, 9 Mitch. R. 1; Caldwell v. Murphy, 1 Duer R. 233. When, by the increased facilities for travel, so large a portion of the population of our country are entrusted to the care of carriers of passengers by railroads and steamboats, and accidents are so lamentably frequent, it would not be proper to relax this rule, for upon it depends the safety of the traveling public. It was the duty of these defendants to have adopted such rules aud regulations for the running their trains as would insure safety, and having adopted them, they must conform to them, or be responsible for all consequences resulting from a departure from them. The evidence shows that the defendants’ train was running several hours out of time when the collision occurred. They, in doing so, must have known the hazard they run, and that the other train, without a mere chance, would be on the road at the time and place where the collision occurred. And The defendants, by so running, were, at the least, guilty of gross negligence, if the act was not willful. They asked the court to instruct the jury that, if the injury was occasioned by the negligence of the Galena and Chicago Union Railroad Company, they would find for the defendants. This the court properly refused, as there was no evidence to base it upon. That company was running its train on time. The train was at the proper place on the road, and was in no fault. They asked the court to instruct the jury, that, if they believed, from the evidence, that both parties were guilty of negligence, or want of care, that they should find for the defendants. The court properly refused this instruction, as there was no evidence of negligence, or want of care, on the part of plaintiff. They asked the court to instruct the jury that, unless they believed, from the evidence, that defendants’ train was not entitled to the road, when the collision occurred, they should find for the defendants. The court properly refused this instruction, as there was no evidence tending to show that they were entitled to the road, but all the evidence showed that they were not entitled to it when the collision occurred. They also asked the court to instruct the jury, that, if they believed, from the evidence, that the Galena and Chicago Union Railroad Company had the sole control and regulation of the time and manner of running all trains on the road where the accident occurred, and that defendants’ train, at that time, was run according to such rules and regulations, and that it occurred by, or was the result of following such rules, that then the Galena and Chicago Union Railroad Company are liable, and they should find for defendants. This instruction was also properly refused. It assumed that the defendants were running on time when the collision occurred, when the evidence shows they were not, and there was not a particle of evidence tending to show they were running in conformity to the regulations of the road. To have given any of these instructions, would have tended to mislead the jury, and bring before them mere abstract propositions. The court did right in refusing them. Upon a careful examination of this whole record, we are unable to perceive any error; and the judgment of the court below should be affirmed. Judgment affirmed.