Galena & Chicago Union Railroad v. Welch , 24 Ill. 31 ( 1860 )

Catón, 0. J.

We find no error in the instructions given or refused, or in the conduct of the trial, unless it be in the refusal of the court to admit the testimony of Mr. Yan Nortwick without a release from the defendant, who called him. The alleged injury was from the giving way of a culvert, and in order to maintain the action, it was necessary to show that it was improperly constructed originally, or was negligently out of repair. The witness was the chief engineer of the road at the time the culvert was built, and it was built according to his plan and under his supervision ; and he was called to prove that the plan was a judicious and proper one, and that it was properly constructed. The objection to the witness is, that he was directly interested in establishing these facts, for if they were not true, the witness was guilty of negligence, and responsible to the company for all damages resulting from such negligence, of which the damages to be recovered in this action would form a part. This point must be resolved by a determination of the question whether, in such an action against the witness, the record in this cause could be given in evidence against him. According to general principles, it is urged, this judgment ought not to be admitted in evidence in such a case, for he is neither a party nor a privy to the record. This is no doubt the rule, when a record is to be used as concluding the matters determined by it, but there are many cases where the record of a cause between strangers to the cause on trial, may be admitted in evidence for certain purposes incidental to the main issue on trial, and the decided weight, if not the whole current of authority, recognizes this as one. In an action against the witness by the railroad company for negligence in the construction of this culvert, the record of this cause would not be evidence of that fact. Indeed it would establish no such fact even as between the parties to this record, for the plaintiff might recover for negligently allowing the culvert to get out of repair, although it were properly constructed originally, or the plaintiff might fail to maintain his action from a variety of causes, although the witness might have been negligent in its original construction. But in an action against the witness for damages, for negligence in the construction of this culvert, after the negligence had been established, and, also, that the injury, now complained of, had resulted in consequence of such negligence, it would then be competent for the company to give this judgment in evidence, for the purpose of showing what damage it had sustained in consequence of the negligence of the witness. Even then it would, by no means, be conclusive, for it would still be competent for the witness to prove that the defense of this cause was not properly conducted, and that a less judgment or no judgment should have been recovered. But the simple fact that this judgment might be used in an action against the witness, upon the question of damages, would seem to make it for hig interest to defeat the present action, and that in order to remove that interest, it was necessary that the defendant should have released him.

The authorities sustain the decision of the court below, and we must affirm its judgment.

Judgment affirmed.