Kinnare v. The Michigan Central R. R.

Mr. Presiding Justice Shepard delivered the opinion of the Court. This action was brought by appellant, as administrator of the estate of B. F. Schmidt, deceased, to recover damages for negligently causing the death of said Schmidt. At the close of the plaintiff’s case, the court, at the request of the defendant, peremptorily instructed the jury to return a verdict of not guilty. The only question of law presented by the record is whether the court erred in giving such instruction, and that, in turn, depends upon whether the evidence failed to make a case for the jury to pass upon. The bill of exceptions affirmatively shows that it does not contain all the evidence that was heard at the trial. It is therein certified by the trial judge, as follows: “ The foregoing witnesses, Louis Schmidt, James Patton, Gustav Mehlschmidt and H. F. McLean were all the witnesses produced by either party to the suit, upon the trial thereof, but the foregoing is not all the evidence of said witnesses.” And the point that with less than all the evidence before us, we can not determine a question of law that depends upon the evidence, is insisted upon by the appellee, and must prevail. “ It has always been the law of this State that if a bill of exceptions did not state that it contained all the evidence, a court of review would presume that the decision of the lower court, which could be, was justified by the evidence not shown, if that shown was not sufficient,” was the language of this court in Garrity v. Hamburger Co., 35 Ill. App. 309, quoted with approval by the Supreme Court in the same case, 136 Ill. 499, where it was added: “ We think the Appellate Court took a substantially correct view of the matter, since it affirmatively appeared, from the bill of exceptions, that evidence which probably bore on the question in issue was introduced at the hearing, but was not copied into the bill of exceptions.” See also Goodwillie v. City of Lake View, 137 Ill. 51; Buckland v, Goddard, 36 Ill, 206; Ballance v. Leonard, 37 Ill. 43; James v. Dexter, 113 Ill. 654. This court has had occasion many times to announce the rule, some of the later cases being Poppers v, Hynes, 60 Ill. App. 448; Reid v. Flanders, 62 Ill. App. 106; Clough v. Kyne, 51 Ill. App. 120; Redner v. Davern, 41 Ill. App. 245; and the early case of Tompkins v. Mann, 6 Ill. App. 171. It follows, necessarily and emphatically, that an assignment of error in law which rests wholly upon the evidence can not be considered upon but a part of the evidence being before us. The judgment of the Circuit Court is affirmed.