St. Louis, Peoria & N. Ry. Co. v. Rawley , 90 Ill. App. 653 ( 1900 )

Mr. Justice Worthington

delivered the opinion of the court.

The evidence as to ringing the bell and sounding the whistle, as is common in cases of this character, is conflicting and irreconcilable. It is a case where instructions should be accurate, and the rules of evidence strictly applied. The right of way of the track upon which plaintiff in error’s train was running, belonged to the C. P. & St. L. Ry. Co., which company managed and cared for it, defendant in error paying for using the rails upon a wheelage basis. This fact would not, however, excuse defendant in error for damages caused by the condition of the right of way. When it, as a common carrier, used the tracks upon such right of way, it became liable for damages caused by its improper condition to the same extent as if it owned or leased it. No objection was made to the introduction of evidence showing the.presence of weeds and shrubs in the vicinity of the crossing, for the limited purpose of bringing' before the jury the general environment and surroundings. But objection was.made to the introduction of such evidence generally, to prove negligence on the part of defendant in error. As no evidence was introduced to show the width of the right of way, and as defendant in error was not chargeable for weeds growing on the sides of the approach but not on the right of way, the objection to the introduction of such evidence to prove negligence should have been sustained. This evidence having been improperly admitted for all purposes, the court should have given the sixth instruction asked by plaintiff in error, which would, have limited its effect.

It is urged as error, that over the objections of plaintiff in error, defendant in error, the widow of the deceased, was allowed to testify as to who supported her and her children. After stating that she was the wife of Edward Eawley, and what he earned as switchman, she was asked:

Q. Well, who supported you?

Objected to by defendant. No ruling shown.

Q. Who supported them before his death, before he was killed %

Objected to by defendant, objection overruled and exception noted.

A. He did.

Q. Now I. will ask you how many children were left at the time of the death of Mr. Rawley % A. Seven.

Q. What were their respective ages ? A. One is seventeen now.

The witness then in answer to questions gave the ages and sex of the other children at the time of the death of their father, ranging from seventeen years to an infant four weeks old.

In overruling the objection to the question “ who supported them. be|ore he was killed,” followed as it was by a detail of the ages of the children, the court erred. It was not necessary that a reason for the objection should have been stated. It was not a question, objectionable for form, that could have been cured by a change of form. It called for incompetent testimony. Under repeated rulings of the Supreme Court, the damage to be recovered in an action of this kind, by lineal descendants, is pecuniary damage only, and this is not affected by the fact that the deceased supported his family, or by the number of them supported. An introduction of evidence of this character tends to awaken the sympathy of the jurors for the bereaved, and to warp their judgment upon controlling issues in the case.

For the same reason the words in defendant's first instruction “ for the loss of his care, maintenance and support,’' should not have been given. C. P. & St. L. Ry. Co. v. Woolridge, 174 Ill. 330.

The instruction to find for defendant was properly refused, there being evidence that warranted a submission of the case to the jury.

A part of the second instruction given for defendant in error is faulty. The part referred to is as follows:

“And if the jury further believe from the evidence in this case that as defendant’s engine and cars approached and reached said highway crossing the bell on the engine was not being continuously rung, or that the whistle on the engine was not being continuously sounded, and that neither the bell nor whistle was sounded continuously for eighty rods from, said crossing, and until said crossing was reached by said engine.”

This instruction is misleading. The statute does not require that the bell shall be continuously rung, or if not, that the whistle shall be continuously sounded. If the bell is rung a part of the required time, and the whistle sounded for the remainder of the time, the statute is complied with.

For the reasons assigned, the judgment is reversed and the case remanded.