| Ill. | Feb 20, 1901
delivered the opinion of the court:
Appellant contends the trial court erred in permitting the conductor of the train by which the deceased was killed to testify as to the result of his examination of the car for a carrier-iron the next day after the accident, and in permitting one Hysler, who was at the time car inspector for appellant, to testify to the condition of the car on the Sunday following the accident, on Thursday, both of these witnesses testifying that at the time they examined the car there was no brake carrier-iron on it. We think it was not error to admit this testimony as tending to show the absence of the brake carrier-iron at the time of the accident, particularly when this testimony is coupled with that of Stevens, the conductor,, that he picked up the pieces of the broken brake, and with the testimony of Hysler, that the car was in the shop for repairs on the Sunday prior to the accident and •that there was no brake carrier-iron on it at that time and that he did not put one on. The condition of the brake apparatus at the exact time of the accident was, of course, the material inquiry, but evidence as to its condition shortly before or after that time would fairly tend to prove its condition at the particular moment of the accident. There is nothing in the evidence to the effect that changes did occur or might have occurred in the brake appliance after the accident and the time the witnesses saw it. We think the testimony was competent. The weight to be given it was for the jury to determine.
The contention of appellant that it was error to permit the widow to testify that she was supported by the deceased, her husband, is fully answered by the cases of Chicago and Alton Railroad Co. v. May, 108 Ill. 288" date_filed="1883-06-14" court="Ill." case_name="Chicago & Alton Railroad v. May">108 Ill. 288, Pennsylvania Co. v. Keane, 143 id. 172, and Swift & Co. v. Foster, 163 id. 50. The case of Chicago, Peoria and St. Louis Railroad Co. v. Woolridge, 174 Ill. 330" date_filed="1898-10-24" court="Ill." case_name="Chicago, Peoria & St. Louis Railroad v. Woolridge">174 Ill. 330, does not conflict with or purport to overrule those cases. There was no attempt in this case to show the poverty, helplessness or dependence of the widow, but merely to show that she was supported by her husband, which was clearly not improper in view of the foregoing decisions.
It is also urged that it was error to permit Tobin, the engineer of the train by which the deceased was killed, to. testify as to the brake equipment on the engine, such evidence, as contended, being immaterial. He testified that the engine brakes were not in working order. The defendant attempted to show that the deceased was careless in the manner in which he operated the brake on the flat car, but the engineer testified that the brake which the deceased was operating was the only brake on the train at the time of the accident, the one on the engine not being in working order. We think the testimony was admissible for the purpose of showing the necessity for an unusual effort on the part of the decedent in applying the brake, and as tending to rebut the inference of want of due care on his part. The question before the jury was as to the sufficiency of the braking apparatus on the flat car, and evidence tending to show that by reason of the condition of other brakes on the train an unusual strain was necessary to be put upon the one in use by the deceased was competent on the question of negligence.
Five instructions were given at the instance of the plaintiff, to each of which appellant objects. It is not claimed that either of them announced erroneous rules of law, but that in view of the evidence,-—or, as is said, absence of evidence,—upon which to base them, they were calculated to mislead the jury to the prejudice of the defendant. There is some confusion in the evidence as to the office of what is termed the “carrier-iron,” and its use as an appliance to render the brake reasonably safe for use, and the allegation of the declaration is not altogether clear in that regard; but we think there can be no serious doubt, from the evidence in the case, that the absence of the carrier-iron upon the brake in question would have the effect of rendering it unsafe. It was not necessary, under the allegations of the declaration, that the plaintiff should prove that the casting at the end of the sill was defective, and also that there was no carrier-iron through which the brake or staff passed. If the absence of the carrier-iron produced a strain upon the casting, even though not defective, which caused it to break, then the plaintiff was entitled to recover, and in this view of the declaration the instructions correctly announced the law. We do not think it can be successfully urged that the instructions, as a series, were not fair to defendant, or that a different result would have been obtained had those given on behalf of the plaintiff been modified, as insisted upon by appellant.
On the whole record there is no reversible error. The judgment of the Appellate Court will be affirmed.
Judgment affirmed.