Morrison v. Illinois Central Railroad , 165 Ill. App. 415 ( 1911 )

Mr. Presiding Justice Shirley

delivered the opinion of the court.

Appellee recovered a judgment against appellant for the sum of seventy-five dollars damages in an action charging negligence in carrying, him to a wrong destination.

Appellee who is described in his declaration as an optometerist and who testified he was a refractionist or specialist in fitting eye glasses, was at Centralia and desired to go to Patoka on the morning train, both places being on the line of appellant’s roads. He purchased a ticket from appellant’s agent and was told by him when the train would leave and on what track. Appellee was informed by some one standing at a train that it was the train for Patoka and appellee got aboard. The train left Centralia and by the time the train reached Ashley it was discovered appellee was upon the wrong train, a train that did not go to Patoka. The conductor directed him to get off, which he did and found he would have to return to Centralia leaving Ashley at 2:35 p. m. When he returned to Centralia it was late in the afternoon, too late for him to go to Patoka on that day. Appellee had advertised he would be in Patoka and he claimed damages for loss of time, additional expense, and the reasonable value of his services at Patoka if he had reached there as advertised.

He was permitted over objection to testify that he had been informed afterwards by five different persons that they had purchased glasses from other dealers at certain prices as appellee was not in Patoka, and that in calculating how much profit he would have made, he had lost one hundred and fifteen dollars by not being at Patoka.

All this testimony was inadmissible. It was mere hearsay. The parties who made these statements were not sworn and there was no opportunity to cross-examine them; moreover, such prospective profits were too remote and speculative. The special damages claimed for loss of profits that the passenger might have made are too remote. Such expected profits had reference to a collateral enterprise of appellee and did not arise out of any alleged breach of appellant’s contract to carry him to Patoka and cannot be presumed to have entered into the consideration of the parties. They were contingent, remote and speculative and could not be recovered.

' The court erred in admitting the evidence and in not sustaining appellant’s motion to strike it out.

Error is assigned on appellee’s instructions II a and III a.

It is said there was no evidence tending to show that any brakeman of appellant directed appellee to take the wrong train and that both instructions are based on such supposed testimony. We think tho testimony tends to show the fact and the instructions are not erroneous in this respect.

It is further said that instruction II a ignores the element of reasonable care on the part of appellee. The flagman of the train who was letting the passengers on says no ticket to Patoka was shown him and the instruction should have contained the element of reasonable care on the part of appellee in boarding the train.

For the errors indicated the judgment will be reversed and the cause remanded.

Reversed, and remmided.