Chicago & North Western Railway Co. v. Stube

McAllister, P. J. The evidence upon the question of ordinary care on the part of the plaintiff and negligence on the part of the defendant below, was not only conflicting, but, judging from the record, the clear preponderance of it was against the plaintiff upon both those essential facts. It is, therefore, a case for the application of the rule requiring accurate instructions, and a reversal of the judgment for anything substantially improper and prejudicial in them. We are of opinion that the first and seventh instructions for the plaintiff were of that character. By the first, the court submitted to the jury to find for the plaintiff if the injury was by an engine of the defendant; that the engine, at the time and place, had not a light upon it showing in which direction it was moving, and it was night at the time. iNo ordinance of the city upon that subject was introduced in evidence, so that the instruction, in that particular, amounted to a direction by the court that the moving an engine by the defendant in the night tim.e, no matter under what circumstances, without having a light upon it showing the direction in which it was moving, was negligence per se, and as a matter of law. Such a direction of the jury was clearly wrong and misleading. In the absence of a statute or ordinance requiring such a precaution, the question of negligence was one of fact for the jury, and not of law for the court. There is no such statute, and no ordinance of any kind is to be found in the record. The counsel for appellee take the position that proof of the ordinance, or the introduction of it in evidence was unnecessary; that courts will take judicial notice of such ordinance. -We are aware of no statute authorizing the courts to take judicial notice of the ordinances of the city of Chicago, when they come in question collaterally, as in this case. The seventh instruction for plaintiff below was improper for two reasons: (1.) There was no evidence whatever that any witness for the defendant testified under a fear of losing his employment, or a desire to please his employer; so that it submitted to the jury a question of fact, as to which there was no evidence, except the fact of the existence of the relation of employer and employe, as respected the defendant’s witnesses, or the greater part of them. (2.) The instruction, taken as a whole, affords to the jury what in many instances they are too anxious to find, viz.: A means and justification for discrediting and disregarding the testimony of the witnesses on beha.lf of a railroad company upon mere conjecture and metaphysical speculation. A moment’s reflection will show the utter unfairness of such an instruction. Here is the plaintiff' testifying in his own behalf, where he has thousands of dollars at stake. The instruction does not apply to him. His credibility is subjected to no test; but those who are called to testify in opposition to him, having no interest in the event of the suit may, upon the mere ground that they are in the employment of the railroad company, be discredited upon conjecture and metaphysical theories born of prejudice alone. ¡Railroad companies, when they voluntarily come or are brought into the courts, are entitled'to no greater, no less rights than private individuals. The rights of all litigants in a court of justice should be equal; impartial justice, devoid of the influences of passion or prejudice, should be the end sought. Such an instruction affords the means for the unlimited sway of both passion and prejudice. If the means of discrediting witnesses there prescribed shall be sanctioned, we are unable to perceive how we could ever determine from the record, in such a case, that the clear weight and preponderance of the evidence was against the plaintiff. But, inasmuch as we have never found such a mode sanctioned by any decided case of authority, or in any elementary work on evidence, we must condemn it, not only for that reason, but for its inherently mischievous tendency to thwart the due administration of justice. The judgment of the court below will be reversed and the cause remanded. ¡Reversed and remanded.