Chicago & Northwestern Railway Co. v. Boller , 1880 Ill. App. LEXIS 282 ( 1881 )

Wilson, J.

It became a material question on the trial in the court below, as to whether the locomotive that drew the train was Vo. 96 or 132. If it was the latter, the proof was uncontradicted and ample that the engine was in good condition and was supplied with the most approved apparatus to prevent the escape of sparks from the smolce-stack.

We think there was a strong preponderance of proof that the engine was Vo. 132, and not Vo. 96. The only witness on the part of the plaintiff, who attempted to identify the engine as Vo. 96, did not see the number, but said he had been in the employ of the company, and knew the engine, as he says, “by her whistle, and everything; ” that he knew the engineer and fireman by sight, and swung a lantern to them on the night in question. It was in the night time, and he might easily have been mistaken as to the engine on which they were riding. On the other hand, the engineer swears positively that it was Vo. 132, and in this he is strongly corroborated by the mileage sheet which he is required to keep and return to the office of the company monthly, and which was introduced in evidence, and it shows that on the night of the fire he ran Vo. 132. So also the record of the night yard-master, who keeps a record of the arrival and departure of engines, shows the same thing. £t would thus seem to be placed beyond dispute that the engine was Vo. 132.

But assuming the testimony to have been conflicting and equally balanced, the second and third instructions given by the court at the instance of the plaintiff were, in any aspect of the case, obviously erroneous. The second instruction was as follows:

“In order to relieve itself from liability in this action, the defendant must not only show that the engine which occasioned the fire was originally constructed with the best and most approved inventions to prevent the escape of fire, but also that at the time of the fire the engine was in good order, and that it was properly and skillfully handled by a competent and skillful engineer.”

Whether the engine was originally constructed with the best and most improved inventions to prevent the escape of fire, was wholly immaterial.. The only question was what was its condition at the time of the occurrence complained of It may have been constructed prior to the invention of the improved appliances, which were in use at the time of the fire, and these may have been added to it prior to the fire. If at the time of the fire the engine was properly constructed, and in good condition, it was enough.

The instruction is also erroneous in assuming that the fire was occasioned by sparks from the engine Whether it was or not, was a controverted question of fact to be passed on by the jury, and, under the issues, the affirmative rested upon the plaintiff.

The third instruction is tainted with the same vice as the second, in respect to the construction of the engine, the jury being told, in effect, that even though the engine may have been perfect at the time of the fire., still the company were liable if it was not originally constructed with the best and most improved inventions.

Whether the agreement between the plaintiff below, and his attorney, by which the latter was to pay the expenses and carry on the suit for a share of the amount recovered, wa^ ehampertous, and if champertons, can be set up as a bar to thd plaintiff’s recovery against the defendant in the present suit, or whether it is only available as a defense when the agreement is sought to be enforced as between the parties to it, are questions which it is unnecessary to now determine.

For the error of the court in srivinv the second and third instructions for the plaintiff, the judgment is reversed and the case remanded.

Beversed and remanded.