Chicago, Rock Island & Pacific Ry. Co. v. Berg , 57 Ill. App. 521 ( 1895 )

Mb. Justice Gaby

delivered the opinion oe the Court.

This is a case of horrible injury. Even the photograph of the dismembered appellee which the record contains, arouses the feeling that the railway, by whose machinery he was mangled, should, whether in fault or not,, do what money can do, to mitigate his- misery.

But if human testimony is to be weighed with any regard to its value, it is conclusively proved that his most unhappy condition is the result of his boyish inclination, leading him to catch upon the ladder of a passing freight car, from which falling, the wheels passed over him. The evidence fills more than eight hundred pages of the record and any collation of it, however thorough, would only prove what must be accepted on our statement, that we have studied it.

We shall therefore reverse the judgment with a finding as a fact, that the injuries of the appellee were occasioned by his own carelessness, and not by any negligence of the appellant.

Such a finding is merely an end of this suit; it is a justification for not remanding the cause, but it is no bar to a new suit. This proposition has never been decided in this State, only discussed here in Union National Bank v. Manistee Lumber Co., 43 Ill. App. 525.

There is another reason why this case is not remanded; the suit can not be prosecuted. It was once dismissed, and many terms afterward, against the objection and over the exception of the appellant, reinstated.

We will not go through the prolix proceedings; simply saying that the court had not jurisdiction to reinstate the suit except by consent of the parties. The judgment is reversed.

Mr. Presiding Justice Waterman.

My assent to the reversal of the judgment of the Circuit Court is based entirely upon my conclusion that the court below had, after the expiration of the term at which the cause was dismissed, no authority to reinstate the same.