178 Ill. 192 | Ill. | 1899
delivered the opinion of the court:
Appellant’s railroad runs north and south through Lawndale, in Logan county, where it has a main track and two side-tracks west of it. Between nine and ten o’clock on the night of November 4,1895, an unused elevator adjoining the west side-track took fire and was burned, and from it fire was communicated to two buildings and out-búildings of appellee across the street and about three hundred feet north-west from the elevator. There was a two-story building with merchandise stored in the upper story, a cob-house and a tenant house, which were destroyed, with the fences, walks and trees. She lived in a house fourteen feet east from the main track, opposite the elevator and about forty feet from it, and that property was damaged by the fire. She brought this suit against appellant to recover for her loss, and there was a verdict for $1500, followed by a judgment. The Appellate Court has affirmed the judgment.
At the conclusion of the evidence the defendant asked the court to give an instruction directing a verdict oh not guilty, but the court refused to give it. It is argued that the court was in error in such refusal, because there was a total absence of evidence of the origin of the fire. No one saw what caused the fire, and no witness knew from personal knowledge that it was communicated from the defendant’s engines to the elevator. The only means of determining the agency which caused it consisted in the surrounding- circumstances, and the evidence tending to charge defendant with causing it was that two of its freight trains passed through Lawndale within a few minutes of each other, just before the fire was discovered; that the elevator was closed and locked, and there had been no fire in it and no way by which the fire could have originated in the building; that there was a high wind blowing from the south-east, which would carry fire or sparks from the track to the elevator; that the engine on one of the trains was emitting some sparks as it passed through Lawndale; that just after the second train had passed the elevator was seen to be on fire in what is called the “dog house,”-—a sort of cupola on top of the building,-—and that the appearances indicated it took fire from the outside. There was no evidence of any other agency which could have caused the fire and no other source is pointed out by counsel, except that it might have been communicated from the plaintiff’s house on the opposite side of the tracks. It is true that the evidence shows the house was there, but there was no evidence that there was any fire in it. The plaintiff, who lived there, had gone to bed and had been in bed for an hour, and the only thing fróm which counsel think an inference that there was a fire in the house might be drawn is the time of year, November 4, when we might presume the weather was cold. We think it clear that such fact, under the circumstances, had no tendency to prove that there was a fire burning in the house which might have been communicated to the elevator. The evidence tended to prove that the fire was communicated by one of these locomotives, and the statute has made such fact, when established, prima facie evidence of negligence. The defense made at the trial was that the engines were equipped with the best and most approved appliances for preventing" the escape of fire; that they were in good condition and repair and were carefully, and skillfully managed, and that no device could be provided that would prevent all sparks from escaping, as in such case there would be no draft and the utility of the engine would be destroyed. There was no evidence which pointed to any other agency than the engines which could have caused the fire, and the defense does not seem to have been based upon such a proposition. Whether the evidence on the part of the defendant was sufficient to overcome the prima facie case made under the statute was for the trial court and Appellate Court, and cannot be reviewed here. The request for the peremptory instruction was properly denied.
Plaintiff, while testifying", was asked if there was any way for the roof to take fire other than from fire from the train, and the court overruled an objection to the question. She answered, “No, sir; none I can conceive of.” She did not see the fire originate, but was in bed and asleep, and knew nothing about any cause that might have existed, and did not pretend to. Anything she could say about it would be a mere conclusion from the facts and circumstances, and the jury had been empaneled to decide what conclusion should be drawn from them. Witnesses must ordinarily testify to facts, and not to conclusions or inferences from facts, and by permitting her to answer this question the court allowed her to take the place and usurp the functions of the jury. The ruling of the court was undoubtedly erroneous. (7 Am. & Eng. Ency. of Law, 492; 2 Best on Evidence, sec. 512; 1 Phillips on Evidence, 778.) If there had been any evidence tending to show that the fire might have originated throng'h some other cause we should say that such an error could not be overlooked but would require a reversal. The admission of her opinion or conclusion to influence determination between different theories or claims as to the cause of the fire would necessarily have been prejudicial, but in the condition of the evidence we do not see how it could have made any difference, because there was only one conclusion which could have been drawn.
The court gave an instruction asked by the plaintiff which followed the statute, and informed the jury that if they believed, from the evidence, the fire was communicated from the locomotive engines used by defendant upon its railroad, that fact should be taken by them as full prima facie evidence to charge the defendant with negligence. The instruction was substantially the one given in Louisville, Evansville and St. Louis Consolidated Railroad Co. v. Spencer, 149 Ill. 97, and the objection made is, that the term “prima facie" should have been so modified and explained that the average juror would comprehend and understand what was meant by it. In the case cited the instruction was held to be proper, and it was said that if, in the opinion of counsel for defendant, there was dang'er that its meaning might be misapprehended they should have offered an instruction for that purpose, which would undoubtedly have been given. In the first instruction given for the "plaintiff in this case the subject is referred to, and it was conceded by. that instruction that the defendant might overcome the prima facie case made by the proof of setting the fire. Webster’s dictionary contains the term as English, and it is probably as well understood as a large share of*the words and terms used, so that it cannot be said to be the introduction of a foreign language into an instruction.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
