Kestin v. Northwestern Elevated Railroad , 1911 Ill. App. LEXIS 937 ( 1911 )

Mr. Justice Clark

delivered the opinion of the court.

In the foregoing statement we have given, in much more than ordinary detail, the testimony relating to the accident in this case, because the case itself turns, in our judgment, entirely upon a question of fact.

Errors are alleged upon the rulings of the court in the admission of testimony, as well as in the giving of certain instructions and the refusing to give certain others. We think, however, that the only one that needs to he considered is the one as to the ruling of the court in refusing to grant a new trial. As there was no eye witness to the accident, the testimony was necessarily wholly of a circumstantial character.

The only allegation in the declaration as finally amended, as to the alleged negligence of the defendant, was that it allowed a certain portion of the plank in the walk that plaintiff’s intestate was required to use in the discharge of his duties to become and remain defective and broken, by reason of which the plaintiff’s intestate was caused to stumble, and he thereupon was run into by a train of motor cars and killed.

Two photographs were introduced in evidence which were taken a day or two after the accident, and both are shown by the testimony to portray correctly the situation. One as taken from the north and one from the south. They show that the end of one of the boards was broken, hut it was not claimed by plaintiff’s counsel that it was because of this broken plank that the accident occurred. The photographs do not show any other holes in the planking.

As set forth in the foregoing statement, witnesses were placed on the stand by the plaintiff, most of whom testified that they examined the walk from below, and that there were numerous holes, etc. Two of the plaintiff’s witnesses, namely Nathan Kestin and Jake Friedman, testified that they were on top of the structure. It is quite apparent that Friedman was not testifying to the truth. He was notified some time after the accident by a policeman, and could not have reached the station until after the body had been taken to the undertaker’s. We are informed in the reply brief for the appellant that the trial judge made this statement to the attorneys for the parties at the hearing of the case:

“I do not think that Friedman told the truth. The only question is a question of policy. I think he committed perjury. I do not think that he was mistaken, but that he lied. I will call it to the attention of the state’s attorney, and tell him what the facts are.”

After a full examination of the record, we agree with the trial judge in his emphatic characterization of Friedman’s testimony. He testified that he went to the place of the accident, and that Manhoff’s right leg was lying in the hole, his head south, etc. This is the only direct testimony tending to show the negligence charged in the declaration. The other witnesses for the plaintiff, excepting Nathan Kestin* saw the place only from below.

It will be noticed that Marcus Budan, a witness for the plaintiff testified that he saw the plank, which seemed to be rotten, and it was broken and drooping down; that this plank was about fifteen or eighteen feet north of the target light. Joseph Kestin places the hole which he saw at eight or ten feet north of the track; Dr. Budan at five or six feet north of the target light. Nathan Kestin’s testimony to the effect that there were several holes in the planking, and the planking itself had been in bad shape for more than a year, was contradicted by the testimony of several witnesses for the defendant, some of whom had had occasion to use the walk many times, as set forth in the foregoing statement, and was disproved by the photographs, which showed no holes.

In order that the plaintiff be allowed to recover it would be necessary to indulge in the conjectures that the intestate had reached the walk when struck by the train and was not on the ties, which he had to pass over before reaching the walk; that there was a hole in the walk; that one of his feet went into this hole; that he fell in consequence thereof and was then struck by the cars. There is no satisfactory evidence that there was such a hole, and on the other hand there is much testimony in the record as to the place where the intestate was found, the condition of his clothing and shoes, the blood stains upon the car which probably struck him, etc., indicating that the accident happened in some other very diff erent way.

Our conclusion is that the plaintiff did not prove by a preponderance of the evidence that the defendant was guilty of the negligence attributed to it in the declaration. Under the well known principle governing this action, as laid down by the Supreme Court, the trial court had no alternative but to submit the case to the jury because there was some evidence tending to support the contention of the plaintiff. This court, however, is not bound by the same rule. It is our duty, as we understand it, to end the litigation if, in our opinion, no judgment in favor of the plaintiff could, under the pleadings and evidence, properly be sustained. As that is our view of this case no good purpose would be subserved by remanding it to the Superior Court.

The judgment of the Superior Court will therefore be reversed, but the case will not be remanded to that court for further hearing.

Reversed with finding of fact.