Chicago & Alton Railroad v. Pennell

Mr. Justice Dickey delivered the opinion of the Court: When the case was passed upon by this court, (as shown in 94 Ill. 448,) it was our duty, by statute, to consider the weight of the evidence, and pass upon the same, in determining whether it was error in the circuit court to deny a new trial. Since that time the statute has relieved us of that duty, and findings of fact made or approved by the Appellate Court, in actions of this kind, are conclusive in this court, unless the record shows affirmatively that the circuit court committed some error as to the law of the case, which may have controlled the finding. In this case we can review only the decision of the circuit court upon questions of law. It is plain this judgment must be affirmed unless some material ruling of the circuit court made upon the trial, upon some question of law, can be shown to be erroneous. Appellant complains that in the instructions given at the' instance of appellee, the court erred in this, that, as is contended, these instructions ignore the question whether or not the burning of the "depot was such a result of the negligence complained of as ought to have been foreseen by defendant and its servants at the time. The record does not show that the court was specially requested by defendant to declare the law as to this particular question, as is claimed it should have been declared. Take the whole charge together, it seems to lay down the law with substantial accuracy,—to have been consistent in all its parts, and sufficiently full,— and we can not see that it was calculated to mislead the jury. The governing facts were fairly submitted to the jury. The statute declares that in actions for damages from injury to property “occasioned by fire communicated by any locomotive engine while passing along any railroad, * * * the fact that such fire was so communicated” shall be prima facie evidence “to charge with negligence ” the owner and operators of the road at the time. It seems plain that this "statute was intended to charge upon the company using the locomotive, all injuries which are shown to have resulted from fire from a passing train, unless the defendant could rebut such conclusion by proof showing that the loss was not occasioned by negligence of defendant. The instructions given at plaintiff’s instance are but four in number, and go no farther than the statute provides in this regard. The five instructions given at the request of defendant, and especially instruction No. 5, present the defence set up. If defendant had wished to have the jury pass upon the question as to whether the burning of the hotel was or was not a consequence of the firing of the depot so unlikely to occur as not to be a part of the proximate and natural consequences of the firing of the depot, the attention of the court should have been particularly called to that question, in a properly drawn and unobjectionable instruction, directly upon that point. This was not done. There is one expression in the first refused instruction asked by defendant, relating to the question of the remoteness of the damages in question. That instruction, however, was properly rejected and refused. Not only was it embodied in an instruction which is confessedly erroneous in two of its propositions, • but the proposition on the subject under consideration does not state the law correctly. It is. not essential, to charge the defendant with the loss caused by the burning of the hotel, that the burning of the hotel should have been a consequence of the burning of the depot so apt to follow that it might have been foreseen by a reasonable person at the time. It was not at all necessary that the burning of the hotel should have been so certain to result from the burning of the depot that a reasonable person could have foreseen that the hotel would burn, or that it would probably burn. It is enough if it be a consequence so natural and direct that a reasonable person might, and naturally would, see that it was liable to result from the burning of the depot,—that is, that it might follow. There was no error in modifying the instructions asked by-defendant, as was done. It is not necessary to- discuss in detail all the criticisms of counsel in relation to the several instructions. It is enough to say we find no substantial error in that regard which might have misled the jury. Some objections are raised to the rulings of the court in admitting and excluding evidence, but we find no substantial error in that regard. It may not be improper to notice particularly what counsel chooses to call “the grossest error in the rulings of the court upon the admissibility of evidence.” Stewart, a witness for defendant, had testified that his attention was called to the fire burning the depot, at a very early stage, and that it was in the inside of the wall, and not on the outside, and also that he was watching the hotel just before and at the time the fire burst forth there, and that it seemed to him “as though a fire was inside the weatherboarding, and burned and charred this outside, and then it burned through.” The statements tended to show that the burning of the depot was caused not from fire thrown from the engine, but from fire from the inner part of the depot, and also that the burning of the hotel was not caused by fire from the depot, but from a fire which begun in the inside of the hotel. The declaration of Stewart, which on cross-examination he denied having made, and which plaintiff was permitted to prove, was, that “the engine set fire to the depot and the depot set fire to the hotel. ” This relates to a fact, and not to an opinion, merely. Witness was present, and had apparently the means of knowing at least the source of the fire which burned the hotel. If the language was such that it might be regarded either as a statement of an ascertained fact, or as merely an expression of opinion, it was not error to allow it to go to the jury. We think there was no error in permitting plaintiff to prove that Stewart had made that statement. Finding no error of law which we can see might have misled the jury, and having no lawful authority to pass upon the weight of the evidence as to questions of fact, we affirm the judgment. Judgment affirmed. Mr. Justice Craig, dissenting.