Chicago, Rock Island & Pacific Railway Co. v. Ross

Mr. Justice Dibell delivered the opinion of the court. In the foregoing state of the proof appellant asked the court to instruct the jury that the burden was upon appellee to prove that the deceased, George Ross, did not know that the headlight was defective, the defect in the headlight being the cause of the accident according to the allegations of the declaration. This instruction was refused. We are of opinion that the burden of proving that deceased did not know that this engine had no headlight on its east end rested upon appellee, under the authority of Goldie v. Werner, 151 Ill., 551; Howe v. Medaris, 183 Ill., 288; L. E. & W. R. R. Co. v. Wilson, 189 Ill., 89; Armour v. Brazeau, 191 Ill., 117; Sargent Co. v. Baublis, 215 Ill., 428, and McCormick Machine Co. v. Zakzewski, 220 Ill., 522. This proposition was not stated in any given instruction. It was stated in other instructions that if the jury believed from the evidence that George Ross did not know that the headlight was out, etc., then they would find a verdict for appellee and that if George Ross knew the headlight was defective he could not recover; but none of those instructions told the jury that the burden of proof was upon appellee to establish that lack of knowledge. It was specially important to appellant that this proposition should be given to the jury, for two reasons: First, appellee’s first given instruction told the jury that if they believed from the evidence that the appellee had proved her case as laid in her declaration or either count thereof then they would find the issue for the appellee, unless they further believed from the evidence that George Ross assumed the risk arising from the defective headlight, as said assumption of the risk was elsewhere explained in the instructions. Appellee had no other instruction which explained the assumption of risk, but there was an instruction given for appellant which contained an explanátion on that subject. But that instruction did not tell the jury where the burden of proof was upon the question whether George Ross knew that the locomotive was without a headlight. Ho count of the declaration stated in terms that Ross did not know that the headlight was defective. The jury therefore were liable to understand from appellee’s first instruction that it was not material that appellee should prove the lack of knowledge by George Eoss of the absence of a headlight. It is true that that omission in the declaration was cured by the verdict, but this refusal of the instruction in question offered by the appellant was before the verdict, and the reason why the omission of such an allegation from a declaration is cured by the verdict is because it is assumed that the jury would not have returned, nor would the court have permitted it to return, a verdict for the plaintiff if such necessary and missing allegation had not been proven. With that allegation absent from the declaration, it was much more material that this instruction as to the burden of proof should be given. Second, while no one testified that deceased knew that the headlight was not on the front of the engine on the night of the accident and the night before, yet he was the foreman in general charge of this switching crew, and he was in and about the engine more or less all night of the 12th and until the time of the injury on the 13th and apparently had many opportunities to ascertain that he had no headlight on the front of the engine with which he was working in the night time. Appellee’s proof on this subject was especially weak in not showing where George Eoss was and what he did during the night of the 12th when the engine was being used by him and his crew in the same defective condition. Under all these circumstances it was especially important to ajopellant to have the jury instructed that the burden of proving that deceased did not know of the absence of the headlight was upon appellee. The first instruction above stated given at appellee’s request was so framed as to impose upon appellant the burden of proving that George Eoss assumed the risk arising from the defective headlight, whereas that burden rested upon appellee under the law as laid down in 1 Thompson on Uegligence, section 368, and applied to this State in C. &. E. I. R. R. Co. v. Heerey, 203 Ill., 492. For the purposes of another trial it seems proper to notice some other errors assigned. The court properly admitted proof of the careful habits of the deceased, because no one saw him at the time of the collision, and no one knew just what he was doing at that time or just how he came to be hurt. I. C. R. R. Co. v. Norwicki, 148 Ill., 29; C., B. & Q. R. R. Co. v. Gunderson, 174 Ill., 495; I. C. R. R. Co. v. Pritchett, 210 Ill., 140. Several of appellant’s instructions were properly refused because they said that if the cause of the death of Eoss was the negligence of fellow-servants appellee could not recover, whereas if the cause of his death was the negligence of the master in using the engine in the night without a headlight, and also the negligence of a fellow-servant, then appellee could recover. Pullman Palace Car Co. v. Laack, 143 Ill., 242; Chicago Terminal R. R. Co. v. Schmelling, 197 Ill., 619. Other refused instructions were practically included in given instructions. Appellant’s refused instruction number five was correct, except that it failed to define fellow-servant, but said, “as defined in these instructions”; and no other instruction defined fellow-servant. Appellant requested five special interrogatories to the jury. The court gave one which asked whether it appeared from the evidence that George Eoss knew that engine Eo. 156 was run only with a lantern suspended below the casing of the headlight on the night he was killed. The other four special interrogatories were refused. Eumbers one and three of these refused interrogatories were practically alike, and sought to inquire of the jury whether Eoss by the exercise of due diligence on his part could have known that the engine Eo. 156 was run without a headlight. The jury might understand this-, inquiry to mean whether Eoss by the exercise of due diligence to ascertain whether a headlight was burning could have known that it was not. It does not appear that deceased was under any obligation to inspect the engine furnished him by appellant for that service and therefore the proper inquiry on that subject should have been whether by the exercise of due care on his part for his personal safety he -would have known that the engine was run without a headlight. The second refused interrogatory was substantially the same as the one that was given. Number four inquired whether the death of Eoss was due to the negligence of the switching crew. If this had been answered in the affirmative that would not determine whether or not the negligence of the master also contributed to his death, and, therefore, it was properly refused. One ground of the motion for a new trial was alleged improper remarks of one of appellee’s attorneys in the closing argument to the jury. This motion was supported by affidavits setting out the remarks alleged to have been made by said attorney. The court did not certify that any such remarks were made or what remarks were made. That which occurs in the presence of the court cannot be preserved by ex parte affidavits, but can only be preserved by being embodied in the bill of exceptions and certified to by the judge. Affidavits are only proper in case the trial judge desires to have his memory aided, and even then when his memory has been aided he must certify the facts. Peyton v. Village of Morgan Park, 172 Ill., 102; Gallagher v. People, 211 Ill., 158-171. If the trial judge had certified that such language was used in the closing argument we must consider it highly improper, for it amounted to telling the jury that there was no measure of damages in this case, and it invited them to assess such damages as they pleased, and in effect told them that the trial judge would not interfere. In fact appellee offered an instruction which was afterwards given to the jury, laying down the measure of damages. It would therefore have been improper to ask the jury to act at will in assessing the damages, regardless of the legal rule for their measurement. The foregoing opinion was prepared in December, 1906, but we withheld it because the principles covered by th& instructions above discussed were involved in George B. Swift Company v. Gaylord, 126 Ill. App., 281, pending in the Supreme Court on appeal from this court. The opinion of that court in that cause, filed October 24, 1907 (229 Ill., 330), fixes upon appellee the burden of proving that deceased did not know of the defect, and distinguishes the cases cited in support of the contrary rule. It also fixes upon- appellee the burden of proving that deceased did not assume the risk. The judgment is therefore reversed and the cause remanded. Reversed and remanded.