Peoria & Pekin Union Railway Co. v. Clayberg

Mr. Justice Scholfield delivered the opinion of the Court: Action on the ease, for negligence resulting in the death of the plaintiff’s intestate. Yerdict of jury, and judgment of court thereon for plaintiff. Appeal to Appellate Court for Second District, and judgment of that court affirming the judgmenBof the circuit court, and appeal from that judgment to this court. The judgment of the Appellate Court relieving us of all questions of fact, we are only to look into the alleged errors of law. The intestate, an errand boy, on his way home at the close of the day’s labors, a little after dark, was struck while on a street, or on a cattle-guard by the side of a street, at a point where numerous railroad-tracks and switches cross such street, by a moving car of defendant, and instantly killed. To show that the intestate was not observing due care at the time he received the fatal stroke from the ear, the defendant, by its counsel, propounded to one of its witnesses the following question: “You may state whether or not you ever saw Bred (the deceased) get on, or attempt to get on, trains?” But, on objection, the court refused to permit the witness to answer the question. The counsel for the defendant then stated they proposed to prove by the witness under examination, and another witness named, that the deceased was in the habit of jumping on trains, but the court ruled that the evidence was inadmissible. No authority is referred to sanctioning the admission of such evidence, and we are not aware of any. Its effect is clearly to raise a collateral and immaterial issue. If such evidence is admissible to prove negligence on the part of the plaintiff’s intestate, then the same character of evidence must be admissible to prove negligence on the part of the defendant, which has been condemned by the entire weight of judicial authority. In re Baltimore and Susquehanna R. R. Co. v. Woodruff, 4 Md. 242; Aldrich v. Pelham, 1 Gray, 510; Kidder v. Dunstable, 11 id. 342; Collins v. Dorchester, 6 Cush. 396; Gahahan v. B. and L. R. R. Co. 1 Allen, 187; Hubbard, v. A. and K. R. R. Co. 39 Maine, 506; Parker v. Portland Publishing Co. 69 id. 173. We think the proposed evidence was properly excluded. The second instruction, given at the instance of the plaintiff, is as follows: “If the jury believe, from the evidence, that the crossing of the defendant’s railroad on Sanger street was used by passers frequently between the hours of six and seven A. M. and P. M., and that the defendant knew it, and if they further believe that the defendant’s servants and employés were switching and moving cars on said crossing between said hours, at a time when' it was dark, by pushing them across said street, then it was the duty of the defendant to take some means to warn the passers, or to prevent accident to passers, and if the defendant did not do so, the defendant was guilty of negligence; and if such negligence was the cause, or the principal cause, of the death of Fred Clark, and if the jury also believe, from the evidence, that Fred Clark was not guilty of negligence which contributed to the injury, then the jury should find a verdict of guilty.” Counsel for defendant insist this is erroneous, because “while it charges the jury that the company was bound to take some means to warn passers over the street, it fails to state the duties whieh the law required of the passers.” It does, however, imply that the intestate, in order that there be a recovery, should not have been guilty of negligence which contributed to the injury,—which is stating the law more favorably for the defendant than, under the doctrine of comparative negligence recognized by- this court, it is entitled to have it laid down. But there is no error in the instruction to the prejudice of the defendant,—no omission of any fundamental principle whieh it was entitled to have stated as an indispensable condition to a recovery. That definitions of what might or might not constitute negligence under claimed theories of proof, are not given, is unimportant. That which it is claimed is here omitted is suppletory in its character, and, if deemed necessary by the defendant, it should have presented it in a separate instruction. An objection is urged to the third of the instructions given at the instance of the plaintiff, upon the ground that it assumes there were facts and circumstances shown, outside of the testimony of witnesses, competent for the consideration of the jury. This is not a fair construction of the instruction. It merely states, in effect, the law as applicable to circumstantial evidence, namely: If facts and circumstances are proved which lead the mind with certainty to the conclusion that other facts and circumstances are true, those facts and circumstances may be accepted and acted upon by the jury as true. 1 Greenleaf on Evidence, (7th ed.) sec. '13, et seq.; Best on Evidence, (1st Am. from 6 Loud, ed.) secs. 27, 294. The fourth instruction, given at the instance of the plaintiff, is as follows: “If the jury believe, from the evidence, that defendant started a train in the city of Peoria without ringing a bell or sounding a whistle, and if they further believe, from the evidence, that Fred Clark was attempting to cross the defendant’s track on which said train was so started, and that by reason of there being no bell rung or whistle sounded, such train or ear of that train struck Fred Clark while so attempting to cross said track, then the defendant was guilty of culpable negligence; and if you further believe, from the evidence, that the death of said Clark was the result of such negligence on the part of defendant, and that said Clark was not guilty of negligence contributing to the injury, then you should find the defendant guilty. ” Two objections are urged against this instruction by counsel for the defendant: First, it singles out and gives undue prominence to the question of the omission to ring the bell or sound the whistle; and second, in stating what constituted culpable negligence, and also in the use of the word “culpable.” This instruction does not ignore the question of the contributory negligence of the intestate, but, as in the second instruction, by necessary implication states the rule in regard to his negligence more strongly against the plaintiff than our view of the law requires. The word “culpable” is not objectionable in the sense in which it is here used,—that of “blamable.” If the defendant was negligent, as contemplated, then it was certainly culpable,—i. <?., “blamable.” The question of the existence of the facts was left to the jury, and the jury were fully instructed as to the measure of the duty of the plaintiff’s intestate, in instructions given at the instance of the defendant. Some objection was taken, but seems not to be seriously pressed in argument, as to the refusal of the court to give certain instructions asked by the defendant. We perceive no error in that regard for which there should, in our opinion, be a reversal of the judgment. The judgment is affirmed. Judgment affirmed.