| Ill. | Jan 22, 1886
delivered the opinion of the Court:
This was an action against the railroad company to recover damages for a personal injury claimed to have been received in the service of the company, as a freight hrakeman upon a train of freight cars, while passing through a covered bridge, from being struck by the bridge. The plaintiff recovered. On appeal to the Appellate Court for the Third District, the judgment was affirmed, and the defendant appealed to this court.
It is insisted there was error in the exclusion of evidence. Members of plaintiff’s family had testified to the effect that he had not been fit for work since the accident; that he was delirious for some time, and had sustained serious permanent injury, both bodily and mental. Inquiry was made by defendant’s counsel of a large number of witnesses, some eight in number, neighbors of the plaintiff, and one being the family physician, whether they had ever heard of the plaintiff’s having been seriously injured by the railroad accident. A while after the occurrence, plaintiff went to work again as a freight brakeman, and his conductor was asked by defendant’s counsel to state whether or not he had any reason to suspect that plaintiff was feeble in mind and body. The qtiestions were excluded, and it is that which is the subject of complaint.
It is said that in the small village in which the plaintiff resided, if the severity of the injury had been such as described by plaintiff’s witnesses, it must have heen talked of and become known to his immediate neighbors, and their never having heard of the receipt of any serious injury would be strong evidence in disproof of the story of members of plaintiff’s family. It might have had a tendency in this direction, especially as respects the family physician, but we can not say there was error in excluding the offered testimony. It is certainly the general rule, that a witness is to testify only to facts within his personal knowledge, and not as to what he has, or has not, heard said. These witnesses did testify to the facts that they never noticed any difference in plaintiff’s condition since his injury, or in his looks and appearance, from what they were before,, and this proof of facts furnished-stronger evidence in rebuttal than would be that of never having heard of any serious injury.
Error is assigned in the giving of the second, third and fourth instructions for the plaintiff. The second was to the effect that when a railroad company constructs a covered bridge along the line of its railroad, it should build it of sufficient height so that persons employed by the railroad company as brakemen, and who are required to go upon the top of freight trains in discharging their duty as brakemen while going through the bridge, may pass through and under the roof of the bridge without danger to their personal safety. The third was, that if the plaintiff was guilty of some negligence, yet if his negligence was slight as compared with that of the defendant, and that the negligence of the defendant was gross, then plaintiff would not be prevented from recovering on account of his own negligence. The fourth was, that the law does not require of a brakeman that he should absolutely know all of the defects of construction and all the obstructions there may be along the line of the railroad, and that he should neglect the performance of his duties as a brakeman to be on the constant lookout for such obstructions and defects which may be dangerous.
The general objection made to the instructions is, that they are false and misleading. We do not perceive any material error in tile instructions. The third is, substantially, a form of instruction which has often been sanctioned by this court. We see no plausible objection to be made to the second instruction, unless it may be the omission of the requirement of the exercise of proper care by plaintiff for his own safety. But that requirement was so prominently put forth as essential to recovery in other instructions, both on the part of plaintiff and defendant, that we are satisfied no prejudice could have resulted to plaintiff from its omission in the second instruction.
In his closing argument for the plaintiff, plaintiff’s counsel said: “For more than twenty years I have stood as a humble advocate of the people against the power of such monopolies as'this.” Upon objection thereto, the court observed that “the remark was very objectionable, and must not be repeated, and the jury should entirely disregard it.” The remark was culpably out of place, in violation of professional duty, and should meet a court’s pointed rebuke. But we are disinclined to allow the effect to it that it alone should reverse the judgment.
The judgment is affirmed.
Judgment affirmed,.
Mr. Justice Scott, dissenting.