Pointon v. St. Louis, A. & T. H. R. R. Co.

Mr. Justice Worthington delivered the opinion of the court. Defendant in error asks that the judgment be affirmed upon the ground that the bill of exceptions nowhere states that it contains all the evidence. The only statements in the bill of exceptions referring to the evidence are immediately preceding the testimony, and are as follows : “ Be it remembered that on the trial of this case, at this term, the plaintiff, to sustain the issues on his part, introduced the following evidence, that is to say; ” and at the close of the evidence the statement “ the plaintiff rested.” These statements are not sufficient to show that the bill of exceptions contains all the evidence. It is a pleading of the plaintiff in error, and as such it is to be construed most strongly against him. All that the statements affirmatively show is that the evidence contained in the bill of exceptions was introduced, but it fails to show that no other evidence was introduced. In addition' to this, they are the statements of the reporter, and not of the judge. The making of a bill of exceptions is a judicial act and can not be delegated. Bank of Michigan v. Haskell, 23 Ill. App. 616; Coggshall v. Beesley, 76 Ill. 446; Culliner v. Nash, 76 Ill. 515. But assuming that it does contain all the evidence that was introduced, there was no error in instructing the jury to find for the defendant. Admitting that it was negligence on the part of defend,ant to send .out this work train without a conductor, and that this was a proximate cause of the accident, plaintiff in error knew that .the train had no conductor. He was an experienced railroad man, and by voluntarily starting with and working on the train when it had no conductor, he assumed the increased risks incident to its having no conductor. C. & E. I. R. R v. Geary, 110 Ill. 383. If the accident occurred through the engineer’s watch being too slow, plaintiff in error was a fellow-servant with the engineer and for that reason can not recover. The case made out by plaintiff in error’s evidence, as contained in the bill of exceptions, precludes a recovery. The judgment is affirmed.