Chicago, Milwaukee & St. Paul Railway Co. v. Harper

Bailey, J„ This was an action on the case, brought by Arthur 0. Harper against the Chicago, Milwaukee and St. Paul Bailway Company, to recover damages for a personal injury. At the time of said injury certain of the employes of the defendant were engaged in repairing one of the defend-, ant’s railway tracks running along a public street of the City of Chicago, and were in the act of cutting a piece off from the end of a bar of railroad iron by means of a cold chisel and hammer or beetle, and as the plaintiff was crossing the street or standing near where said employes were at work, a small piece of iron was broken off from the iron bar or hammer and flew and struck him in the face and put out his left eye. The cause being tried by a jury, the issues were found in the plaintiff’s favor and his damages assessed at 85,000, and judgment was rendered accordingly. The evidence as to the negligence of the defendant’s employes and as to the contributory negligence of the plaintiff, is conflicting, but the jury having resolved the conflict in favor of the plaintiff, we see no ground for disturbing their finding. The question of negligence is a question of fact for the jury to be determined by them in view of all the facts and circumstances disclosed by the evidence, and as we are unable to perceive that they have misconstrued or misconceived the evidence, or that they have been actuated by passion or prejudice, we must accept their finding as conclusive. Some complaint is made of the rulings of the court in giving and refusing instructions to the jury, but as the instructions do not appear in the bill of exceptions they are not open to review in this court. The original bill of exceptions is brought here by stipulation in pursuance of the recent statute in that behalf, and, on examining that document, we find that the defendant, instead of copying the instructions into the bill of exceptions, has merely inserted in the proper places directions to the clerk to copy them. Had the clerk prepared a transcript of the record in the usual way, he might doubtless have obeyed these directions, and thus embodied the instructions in the transcript of the bill of exceptions. As the original, however, has been brought here, we are compelled to consider it as we find it, and we are thereby left wdiolly without information from the record as,to what instructions were given or refused. The original bill of exceptions is attached to and forms a part of the same document with the transcript of the record proper, and following the bill of exceptions are also included, in the same document, several papers which, from their appearance, we may suppose are the original instructions to the jury. There is nothing, however, either in the recitals or certificates of the clerk, or otherwise, identifying said papers or giving any information as to what they are, and there is certainly nothing appearing from which we have any right to assume that they are the instructions referred to in the bill of exceptions. Indeed, as they now appear, they are no part of the record, and can not properly be considered by us for any purpose. Where parties expect to bring the original bill of exceptions to this court under the provisions of our present statute, they should see to it that all documents which they desire to preserve in the record are copied into the bill of exceptions in extenso, as it is manifest that the loose practice of merely inserting a direction to the clerk to copy such documents in the transcript can not avail them. As there is no apparent error in the present record the judgment will be affirmed. Judgment affirmed. ,