Merrill v. Michigan Central Railroad

Mr. Justice Thompson delivered the opinion of the court. The chief contention of the appellant is that the judgment cannot be sustained on the evidence, and the argument is that neither negligence on the part of the appellant nor ordinary care on the part of the appellee was proved. The declaration avers that appellee was a passenger at the depot about to get aboard the train of appellant and that a servant of appellant upon the platform ringing a bell, to attract passengers to the railroad restaurant located in the depot, carelessly and negligently with great violence struck appellee, etc. The evidence proves that the appellee and her husband went to the depot for the purpose of becoming passengers on the train; the ticket office was closed so that they were unable to get tickets but they had money sufficient to pay their fare and intended to pay it on the train. A person becomes a passenger when, intending to take passage, he enters the waiting room of a depot or place provided by the carrier for the reception of passengers at a time when such place is open for the reception of passengers intending to take passage on trains of the company and desires to buy a ticket, or if the ticket office is not open undertakes to get on the train while the train is standing for the reception of passengers, intending to pay his fare on the train. Elliott on Railroads, sec. 1879; C. & E. R. R. Co. v. Jennings, 190 Ill. 478; Pennsylvania Co. v. McCaffrey, 173 Ill. 169. “It is the duty not only to exercise a high degree of care while the passenger is upon the train, but also to use the highest degree of care and skill reasonably practicable in providing the passenger a safe passage from the train.” Pennsylvania Co. v. McCaffrey, supra. The same must be the rule concerning the passage of passengers from depots to trains. If the defendant company was only required to exercise ordinary care in providing a safe passage.from the depot to the train, yet, it was a question for the jury to say from all the evidence whether the appellant was guilty of negligence in swinging the bell and then turning and swinging it in another direction so as to strike and injure a passenger going from the depot to the train, and whether the appellee was in the exercise of ordinary care in passing two or three feet behind such bell ringer. The jury have passed on these questions favorably to the contention of appellee and we cannot reasonably say that the jury was mistaken. It is also contended that the court admitted erroneous evidence on the part of the appellee. Appellant is correct in this contention, but the evidence was admitted without objection. The first witness called was Earl Merrill. He was asked his age and answered “eighteen;” and then was questioned as follows: ‘-‘Your are a son of plaintiff?” and answered “Yes.” “Your father is Fred Merrill, a letter carrier who was here A,moment ago ? ’ ’ and answered “ Yes; ” “ Have you any™brothers and sisters?” “I have two brothers, but no sisters.” “What are their ages?” To this there was an objection which was overruled and he answered “Fifteen and thirteen.” “Are they living at home with their parents?” “Yes sir.” These facts were proved by appellee without any objection being-interposed except an objection to the question concerning the age of the two youngest children. All .this evidence was clearly improper, and had an objection been made and overruled to the proof of the family relations, the case would have to be reversed. Jones & Adams Co. v. George, 227 Ill. 65; Lauth v. Chicago Union Traction Co., 244 Ill. 244. All that appellee was entitled to recover was compensation for her injuries. The proof that her husband was a letter carrier and that she had three children who were living at home was irrelevant, and perhaps was introduced for the purpose of appealing to the sympathy, passions or prejudices of the jury. This court, however, cannot reverse judgments because counsel for appellant permitted objectionable questions to be asked and answered without objection while the trial was in progress, nor because counsel on the other side got before the jury improper evidence without. objection and exception. If counsel for appellant did not object to the question and permitted irrelevant and prejudicial testimony to go to the jury we cannot aid them. It is also contended that the court improperly sustained an objection to certain evidence offered on behalf of appellant. Appellant sought to prove orally certain regulations regarding how passengers were to reach trains. If the regulations were a matter of record or printed, then the evidence offered was secondary evidence, and besides there was no proof tending- to show that appellee or the public had any notice of such regulations; and the objection was properly sustained. Finding no error in the case to which objection was made requiring the reversal of the judgment, it is affirmed. Affirmed.