145 Ill. App. 50 | Ill. App. Ct. | 1908
delivered the opinion of the court.
The contention of appellee that as the defendant urged but one ground in support of its motion to direct a verdict, it should, as appellant here, be confined to that ground, cannot be sustained. The motion was denied, the cause submitted to the jury and a motion for a new trial, on the ground, inter alia, that the verdict was contrary to the evidence, was overruled. The error assigned here, that the trial court erred, “in denying defendant’s motion for a new trial”, brings before us for review the question of the sufficiency of the evidence to support the verdict.
From the evidence the jury might, in our opinion, properly find that the plaintiff was not guilty of contributory negligence, and had not assumed the risk of injury from the negligence of Pflaeger.
The members of the switching crew were fellow-servants. To recover the plaintiff was bound to prove: that Pflaeger was an incompetent and unfit switch-man; that defendant was negligent in retaining him in its service; that Pflaeger was guilty of negligence, and that his negligence was the proximate cause of plaintiff’s injury.
We think that, from the evidence, the jury might properly find, that the backing of the front section of the train against the standing car, under the circumstances shown by the evidence, was an act of negligence; that such act of negligence was the direct and proximate cause of plaintiff’s injuries; that Pflaeger was an incompetent and unfit switchman, and that defendant was negligent in retaining him in its service as a switchman.
The case turns on the question, whether from the evidence, the jury might properly find that it was through the negligence' of Pflaeger, that the head section of the train was backed against the standing car.
Plaintiff was the only one of the switching crew who testified at the trial. In the course of his examination he stated that Pflaeger gave a signal to back up; counsel for defendant said, “I object”; counsel for plaintiff asked: “Did you see the signal?” Plaintiff answered “No, sir”. Counsel for plaintiff then said “Well, of course, you only know from hearsay what happened.”
We think the statement of plaintiff that Pflaeger gave a signal to back up must be disregarded, although there was no formal motion to strike it out.
There is in the record no competent direct evidence tending to show that Pflaeger gave any signal or other direction to the engineer to back up. For appellee it is contended that from the facts and circumstances proved the jury might infer that Pflaeger gave such signal or direction. But the hypothesis that the engineer backed up without a signal from Pflaeger, is as consistent with all that the evidence proved or tended to prove as the hypothesis that Pflaeger gave him a signal to back up.
In his work on evidence Starkie, speaking of circumstantial evidence, says: “Such evidence is always insufficient, where, assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true, for it is the actual exclusion of every other hypothesis which invests mere circumstances with the force of proof”. 1 Starkie Ev., 444. In Cotton v. Wood, 8 C. B. N. S., 98 E. C. L. 568, Mr. Justice Williams said, p. 573: “There is another rule of the law of evidence which is of the first importance, and is fully established in all of the courts, viz.: that where the evidence is equally consistent with either view—with the existence or non-existence of negligence—it is not competent for the judge to leave the matter to the jury. The party who affirms negligence has altogether failed to establish it. That is a rule which ought never to be lost sight of”.
Appellee contends that if the engineer started to back his engine, without receiving a signal from Pflaeger, Pflaeger was negligent in failing to give him a signal to stop, or warning plaintiff that the train was coming towards him. The facts proved do not exclude the hypothesis that if the engineer started to back his engine without receiving a signal from Pflaeger, he might have refused or neglected to obey a signal to stop, if Pflaeger gave one.
There is no evidence from which the jury might properly find that if the engineer backed up without any signal, Pflaeger could have warned the plaintiff that the train was coming towards him in time to avoid injury. He could not have warned him by signal with his lantern, for plaintiff and Kelner were not looking towards the head of the train, but were at work, and the first that either saw of the approaching train was when Kelner saw a reflection of his lantern in a wheel of the approaching car; nor by calling to him, for Pflaeger was twenty or more car-lengths away from plaintiff, and a train was passing by on another track.
Appellee further contends that as the evidence tended to prove that either Pflaeger or the engineer was guilty of negligence which directly caused plaintiff’s injury, and further tended to prove that Pflaeger was an incompetent and unfit switchman, and there was no evidence tending to show that the engineer was incompetent or unfit, the jury might from such evidence draw the conclusion, or inference, that on the occasion in question Pflaeger, and not the engineer, was negligent. The cases cited do not support this contention.
Proof of previous acts of negligence, or of the bad reputation of Pflaeger, was not admissible as tending to show that he was negligent at the time in question, nor could the jury, from such proof, properly draw the conclusion that he was then guilty of negligence. 1 Bailey M. & S., Sec. 1507; P., F. W. & C. Ry. Co. v. Ruby, 38 Ind. 294, 312.
The proof shows that the engineer was in the office of defendant’s counsel during the first day of the trial, and that at the close of the day he was not directed to return. The second day plaintiff’s counsel requested defendant’s counsel to produce the engineer, and they declined to do so and stated that he was not then at their office. The engineer was not then in the service of the defendant. We.do not think that from this evidence any inference of fact unfavorable to the defendant could properly be drawn by the jury.
A careful examination of the evidence leads us to the conclusion that the evidence is not sufficient to support the verdict, and the judgment will therefore be reversed and the cause remanded.
Reversed and remanded.