City of Chicago v. Wright & Lawther Oil & Lead Mfg. Co.

Wilson, J. Of the grounds relied upon for a reversal of the judgment below, we shall consider but one, namely, the ruling of the trial court in admitting in evidence the ordinance of the city, authorizing the Chicago; Burlington and Quincy Railroad Company to lay down its tracks in Beach street and permitting appellee’s counsel in his argument to the jury to call their attention to, and comment upon, that portion of the ordinance which requires the railroad company to indemnify the city against any damages it might incur by reason of the construction of the viaduct. The ordinance was in effect merely a license or permit from the city to the railroad company, (not a party to the suit) to construct its tracks in Beach street, upon certain specified conditions to be performed by the company. Appellee was neither party nor privy to it, and was not bound by any of its terms or conditions. It was claimed, however, by appellee upon the trial, that it was important to its rights to fix the time when certain of the railroad tracks crossing Polk street, immediately west of appellee’s property, had been laid prior to the construction of the viaduct, the argument being that the greater the number of tracks before the construction of the viaduct, the greater the damage occasioned thereby to appellee’s property, and consequently the smaller the damage resulting to appellee’s property from its construction; and that for the purpose of fixing the dates when the tracks were laid, and to show that a witness previously called by the city was mistaken as to the time stated by him, the ordinance became pertinent evidence. The court, against the objection and exception of the defendant, admitted the entire ordinance in evidence, and subsequently, against a like objection and exception, permitted appellee’s counsel to call the'attention of the jury to the fact that the city was indemnified by the ordinance, and that the railroad company would have to pay whatever damages the jury might find. In this, we think there was prejudicial error. Whether the city was indemnified or not was wholly immaterial, either to the plaintiff’s cause of action or to the amount of damages to which it was entitled. To argue to the jury that the city was indemnified by the railroad company, so that whatever damages they should award would not come out of the tax-payers, but would have to be paid by the railroad company, was to present to their minds an improper consideration. Its inevitable tendency was to make them (to say the least) less circumspect in estimating the actual loss occasioned by the injury complained of. It is true the court, at the request of the defendant, instructed the jury that they should disregard the evidence as ' to the liability of the railroad company. This was perhaps a technical correction of the evil, but we can not say it was effectual to wholly cure it. An impression once created in the mind is not easily removed. We may close the door after looking out upon a beautiful landscape, but we do not thereby shut out the landscape. The vision still remains, photographed upon the tablet of the brain. The jury could not forget when considering of their verdict that it was the railroad company and not the city that was to pay the damages; and it is a reasonable inference that this consideration had its influence in their deliberations. For the purpose for which the ordinance was professedly offered, namely, to fix a date, it was not necessary that the entire ordinance should have been introduced. Section 4, which contained the indemnity clause, was separate and distinct from the other pro visions, and conceding that the ordinance furnished competent evidence as to the alleged date, it was only necessary and only admissible to introduce such parts of it as were sufficient to show the date. But even if the entire ordinance were admissible, it was wholly improper for the counsel to comment upon the indemnity clause. The court properly instructed the jury to disregard the evidence on that subject, and for the same reason should have interposed to prevent the evidence from being discussed. We can not say that justice has been done in this case, because we can not know to what extent the jury were influenced by the testimony improperly admitted and commented upon by counsel. We are therefore of opinion that a new trial ought to be had, and accordingly reverse the judgment below and remand the case for further proceedings. Reversed and remanded.