Pennsylvania Co. v. Boylan

Mr. Justice Sheldon delivered the opinion of the Court: This was an action brought in the circuit court of Cook county, July 19, 1881, for damages consequent upon being struck by a piece of plank caught from the covering of a culvert at Forty-seventh street crossing, in Chicago, by a passing locomotive of the defendant railroad company, on Sunday morning, July 20, 1879, whilst plaintiff was standing near the tracks of the railroad. The plaintiff recovered. On appeal to the Appellate Court for the First District the judgment was affirmed, and defendant appealed to this court. The declaration contains two counts, the first averring that defendant suffered divers of the planks wherewith the culvert under the tracks was covered, near Forty-seventh street, to be and remain unfastened, and piled up and lying crosswise on the railroad; and the second averring that defendant negligently suffered the culvert to be repaired in a bad and unsafe manner, and in such a manner that divers planks with which it was covered were thrown loosely upon the railroad, and suffered to remain unfastened, and to lie crosswise of each other, by means whereof, etc. All the proof to show negligence of the railroad company consisted in the testimony of plaintiff’s mother, and of her near neighbor, Dennis Larkin. Larkin, testified that the railroad hands were working on the culvert the Saturday before—that he saw them throwing the plank temporarily on the culvert, and putting on their hats and going home. Mrs. Boylan, plaintiff’s mother, testified that she noticed men at work the Saturday before, on the culvert. She noticed they were cleaning the culvert; the men were down in the culvert ; that they were working till late in the afternoon. Witnesses on behalf of the defendant testified that none of the hands of the railroad company worked near Forty-seventh street on the Saturday before the injury; that na work was . done at that culvert or at that crossing by any of the railroad men that day. The testimony of these witnesses tended to show that the culvert was overhauled and thoroughly repaired in September, 1878, nine months before the accident, and that the company’s track inspector saw it every day thereafter, and that it remained in proper condition up to five o’clock Saturday night. The accident occurred at half-past seven o’clock the next morning, when it was found that all the planks between the two rails of the track in question had been pried up—that they were loose at both ends. One of the assignments of error before the Appellate Court was, that the circuit court erred in the rejection of testimony. Gruhlky, the section foreman on the tracks at and in the vicinity of Forty-seventh street during the year 1879, and Hynes, a section man under Gruhlky, had given testimony that Uo work was done on the culvert on the Saturday next before the accident, and that the planks on the culvert were' all right that day. After this, Mr. and Mrs. Boylan, the father and mother of plaintiff, testified, that on Sunday Hynes said to them that he told the “section boss” (Gruhlky) the evening before that it was a dangerous way to leave those, planks, without being spiked down. After the close of plaintiff’s evidence, defendant’s counsel recalled the witness Gruhlky, and, at the court’s direction that an offer of proof be made, the following was made: “We then offer to prove by the witness Gruhlky, who was Hynes’ section boss, that .the witness Hynes never told him (Gruhlky) anything of the kind testified to by the witnesses Mr. and Mrs. Boylan, namely, that Hynes told them, or one of them, that he told the section boss that it was a dangerous way to leave those planks, • without being spiked down. ” To the proof thus offered the court sustained plaintiff’s objection, and excluded the offered proof. In this we think thére was error. This testimony of the Boylans was, in its tendency, evidence of the most damaging character against defendant. The natural impression from it upon the minds of the jury would he, that the section foreman had notice the evening before that the planks were left loose upon the culvert, and was warned that it was a dangerous way to leave them. Defendant should have been allowed to counteract such effect, so far as he might by the evidence, that the section foreman did not receive such notice and warning,—that Hynes did not make any such statement to him, as testified to by the Boylans. It is not a sufficient answer which plaintiff’s counsel makes, that it was not sought by the Boylans’ testimony to prove the fact that Gruhlky was told of the condition of the planks, but only that Hynes said he so told Gruhlky, the purpose being merely to impeach Hynes, by showing a contradictory statement by him. But evidently the effect would not be limited to such purpose,—it would tend to impeach the testimony of Gruhlky as well, and would be calculated to make the impression upon the jury as above named, and it was but just that Gruhlky should have been allowed the opportunity to disprove that such a statement had been made to him by Hynes. The witness O’Donnell had stated that he had been twentythre.e years in the defendant’s employ as a carpenter, his work including that of overhauling and repairing culverts, and was acquainted with their durability and use. He described the manner in which he rebuilt this culvert in September, 1878, and stated he left it in good condition. He was thereupon asked this question: “Undisturbed, how long would that condition last?” The witness Hynes had testified that on Saturday night, when he left Forty-seventh street, there was no place on the culvert where the planks were loose—no place that he knew of. He was then asked this question: “Would you have known it if there were?” The witness Gray, who for many years had had charge of all work upon the tracks north of Englewood, was asked this ' question: “For what purpose, or in what case, would that planking be removed by the company for the purpose of maintaining and operating its road ?” The court sustained an objection to each of these questions. In Hynes’ testimony that “there was no place on the culvert where the planks were loose—no place that he knew of, ” the last clause pretty much nullified the first. The statement that there were no planks loose that he knew of, was of little worth unless he would have known it if any were loose. An affirmative answer to the question put to him, that he would have known it if there had been any planks loose, would have counteracted the injurious effect of the last portion of his testimony, and left the first portion in full force, making. it valuable evidence for defendant. Perhaps, in strictness, the more correct inquiry might have been to have asked the witness to state what means of knowledge he had as to the condition of the planks; but yet, we think an answer to the question which was put should have been permitted. There being evidence on one side that there were repairs made of the 'culvert, or the planks removed, on Saturday, and on the other side that there was nothing done to the culvert on that day, it. had a material bearing whether there was any necessity for making any repairs, or occasion for removing the planking, at that time. The questions to the witnesses O’Donnell and Gray were calculated to elicit information on those points, and the answers, according as they might have been, would have tended to corroborate the testimony on the one side or the other. If, from the length of time since the culvert had been put in good condition, there could be no probable necessity for any repairs at the time of that Saturday, and there could have been no other occasion than that for removing the planks, this would have been corroborative of the testimony that there were no repairs made or planks removed at that time, and in suck a balance of conflicting testimony any corroborative testimony.was important. We are of opinion that answers to all the questions should have been allowed. Without considering any other assignments of error, for the errors indicated the judgment of the Appellate Court will be reversed, and the cause remanded. Judgment reversed.