Reiten v. Lake St. Elevated R. R.

Mr. Justice Windes delivered the opinion of the court. It is claimed on behalf of appellant that the relation of passenger and carrier existed between appellant and appellee, but the evidence fails to support this contention. There is no evidence that appellant had paid her fare or had a ticket, but only that she presented herself on the station platform and attempted to get upon appellee’s train. We are not prepared to hold that such fact showed the relation of passenger to appellee, and therefore the authorities cited in that behalf and argument made are not applicable. It is also claimed that, upon the evidence before the court, the court erred in refusing to submit the case to the jury. Whether or not this position is tenable, it seems unnecessary for us, on this record, to decide. For appellee it is contended that appellant was guilty of contributory negligence because she attempted to get on the train while it was moving, and for that reason there was no error in taking the case from the jury. This question it is also unnecessary to decide on this record. We are of opinion that the ruling of the court in refusing to allow appellant to prove what the conductor said in response to the statement of the witness English, at the moment the accident occurred, as follows, There she is, and there she is going down,” was erroneous. It was part of the res gestee, and was competent. O. & M. R. R. Co. v. Porter, 92 Ill. 439; Springfield v. Welsch, 155 Ill. 511; Quincy v. Gunse, 137 Ill. 264; Springfield Ry. Co. v. Hoeffner, 175 Ill. 634-43, and cases there cited. We are unable, by reason of the court’s refusal to allow appellant’s counsel to state what he expected to prove by the witness, to tell what the evidence was, but we may assume that it would show facts tending to prove appellant’s right to recover. It is no justification of the court’s ruling that the evidence was excluded on re-direct. Appellant attempted to put it in on her direct case, but the court ruled it out. A part of the evidence, being the words of the witness to the conductor at the instant of the accident, having been brought out on cross-examination, appellant was entitled to show what the conductor said in reply. 1 Wharton on Evid., Secs. 572 and 573; Marsullo v. Met. St. Ry. Co., 52 N. Y. Sup. 286; Dutcher v. Howard, 47 Pac. Rep. 28. For the error in excluding this evidence, the judgment is reversed and the cause remanded. Mb. Justice Adams dissenting. I am of the opinion that the judgment should be affirmed.