author: Mr. Justice Bailey

text:
    The Terre Haute and Indianapolis Railroad Company v. Julia Voelker.

      Filed at Mt.Vernon June 17, 1889.

    1. Practice—specific objection—as a waiver of all other objections. A specific objection to evidence based solely upon a particular fact, is strictly a waiver of all objections based upon other facts not specified or relied on. This rule is based upon the equitable consideration, that if the other objections had been made it might have been in the power of the party offering the evidence to obviate them.
    2. A certified copy of an ordinance, when offered in evidence, was objected to on the specific ground that it was not signed by the mayor and city clerk of the city. The charter provided three modes by which ordinances passed might become operative : First, by the approval of the mayor, evidenced by liis signature; second, by a majority vote of the council on reconsideration, after being returned by the mayor, with his objections; and third, by being retained by the mayor more than five days: Held, that the objection was properly overruled, as it did not cover all the modes by which the ordinance might have become operative.
    3. In such case, if it had been objected that the ordinance had not gone into effect in either of the modes provided by the charter, the party offering the same might have been able to show that it had been passed over the mayor’s veto, or that it had become operative by his retaining it more than five days without signing it.
    4. Obdutaitoe—mayor’s certificate—of its proper office. The signature of the mayor, when he approves an ordinance, is no part of the ordinance itself, any more than are the minutes of the proceedings of the city council in which is recorded the vote by which the ordinance was passed. It is merely the evidence of his approval.
    5. Same—how authenticated—what it must show on its face. While, under the charter of the city of East St. Louis, an ordinance can have no validity until it has been passed by the council, and then placed in the mayor’s office, and afterward approved and signed by him, or retained without action beyond the prescribed period, or passed over his veto by a call of the ayes and noes, yet the ordinance need not bear on its face the evidence of all or any of these proceedings, except, of course, when it is signed by the mayor such signature will necessarily appear.
    6. Under a city charter, which provides that “all ordinances and resolutions of the city may be proven by the seal of the corporation,” etc., a copy of an ordinance certified to be such by the city clerk, and authenticated by the corporate seal, is competent evidence tending to show that the ordinance had been duly passed by the city council, and hadgoneinto effect in some one of the modes prescribed bythe charter.
    7. Heomobííoe—what constitutes negligence—as a conclusion of law. What constitutes negligence is ordinarily a question of fact for the jury. There may be conduct, however, so clearly and palpably negligent that all reasonable minds, without hesitation or dissent, would so pronounce it. When that is so, the inference of negligence may properly be said to be a necessary one, and such conduct may be treated as negligent per se.

    8. Same—omission of statutory duty by railway company. The omission of a railway company to perform its statutory duty in relation to ringing a bell or sounding a whistle on approaching a highway crossing, resulting in injury to another, is negligence per se, or as a conclusion of law. A statute commanding an act to be done, creates an absolute duty to perform the act, and the duty of performance does not depend upon and is not controlled by surrounding circumstances.
    9. Same—contributory and comparative negligence—care required at highway crossings. An instruction embodying the proposition of law that a party’s going upon a railroad track at a point where it crosses a highway or street, without looking or listening for approaching trains, is negligence per se, and that such conduct, in case of an injury at such crossing, constitutes such contributory negligence as will bar a recovery therefor, is properly refused, in an action against the railway company to recover for the injury.

      10. But when the question arises upon a state of facts on which reasonable men may arrive at different conclusions, the fact of negligence can not be determined until one or the other of these conclusions has been determined by the jruy. Negligence can not be conclusively established by a state of facts upon which fair-minded men may well differ.
    11. It is doubtless a rule of law, that a person approaching a railway crossing is bound, in so doing, to exercise such care, .caution and circumspection to foresee danger and avoid injury as ordinary prudence would require, having in view all the known dangers of the situation; but precisely what such requirements would be, must manifestly differ with the ever-varying circumstances under which such approach may be made.
    / 12. No invariable rule, however, can be predicated upon the mere fact of failing to look or listen; but a jury, properly instructed as to the legal duty in respect to care and caution of a person approaching a railway crossing, must draw from such act, in connection with all the attendant circumstances, the proper conclusion as to whether he is guilty of negligence or not.
    13. The neglect or failure of a person approaching a railway crossing to look or listen for an approaching train, is mere evidence on the question of contributory negligence, like any other to be submitted to ■the jury. To omit looking and listening when neither can be of any avail, as, when the track is hidden from sight, or other sounds drown the noise of the cars, is not contributory negligence. The omission to take such precautionary steps does not necessarily, and as a question of law, constitute negligence, but is proper to be considered by the jury as evidence bearing on the question, as one of fact.
    14. Verdict—special finding—whether it will control general verdict. On the trial of an action by an administrator, against a railway company, for the killing of the plaintiff’s intestate by a collision at a street crossing, in which was involved the question of the defendant’s negligence and also that of the deceased, the defendant asked the court to submit to the jury the question whether the deceased could have seen or heard the defendant’s train approaching the crossing if he had looked or listened for it before he drove or went on the crossing, at the time he received the injury, which the court refused to give without modification ; Held, that the question, as proposed, called for a finding as to mere evidentiary facts, none of which, if found either way, could have had any controlling effect upon the general verdict.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St.Clair county; the Hon. George W. Wall, Judge, presiding.

      Mr. John Gt. Williams, and Mr. A. S. Wildeeman, for the appellant:
    The so-called ordinances 460 and 462 were improperly admitted in evidence, because not signed and approved by the mayor of East St. Louis, the law providing that if he approves he shall sign, etc. City Charter, (1 Private Laws of 1869, p. 896,) art. 4, sec. 9; State v. Newark, 1 Dutch. 399; State v. Jersey City, 1 Vroom, 148; Howard v. Jersey City, id. 93; Dey v. Jersey City, 19 N. J. Eq. 412; In re Breaux's Bridge, 30 La. Ann. 1105.
    When a precedent act or step is necessary to the validity of an ordinance, it must be proved. Schott v. People, 89 Ill. 195; Railroad Co. v. Hughes, 38 id. 174.
    The burden of proof rests on the plaintiff, not only to show negligence in the defendant, but also that the deceased exercised ordinary care to avoid the injury. Railroad Co. v. Johnson, 103 Ill. 521; Railroad Co. v. Evans, 88 id. 63; Railroad Co. v. Damerell, 81 id. 450; Railroad Co. v. Godfrey, 71 id. 500; Railroad Co. v. Lee, 68 id. 576; Railroad Co. v. Godfrey, 58 id. 272; City of Mendota v. Fay, 1 Bradw. 418; Tolman v. Railroad Co. 98 N. Y. 198; 50 Am. Rep. 649.
    It is culpable negligence to cross the tracks of a railroad at a highway crossing, without looking to see if a train is approaching. 2 Borer on Railroads, 1031, 1032; 3 Woods- on Bailways, 1302, 1303; Beach on Contributory Negligence, 191, 194; Railroad Co. v. Dimick, 96 Ill. 43; Railroad Co. v. Hetherington, 83 id. 510; Railroad Co. v. Hart, 87 id. 529; Railroad Co. v. Harwood, 80 id. 88; Railway Co. v. Hatch, 79 id. 137.
    Where the neglect of those precautions appears, it is uniformly declared by the courts that the party so neglecting is guilty of negligence per se. Railway Co. v. Jones, 76 Ill. 395 ; Railroad Co. v. Damerell, 81 id. 450; Railroad Co. v. Van-Patten, 64 id. 516; Beach on Contributory Negligence, 193.

      It was therefore error for the court to refuse to tell the jury, by the first and third instructions asked by appellant, that appellee’s decedent failed to exercise ordinary care to avoid the injury of which he died, if the jury found, from the evidence, that he went upon the crossing in a closed and covered milk wagon, and that he did not stop to look or listen for the approach of the train, and that if he had looked or listened for its approach, he might have seen or heard it. Railway Co. v. Hatch, 79 Ill. 139; Railroad Co. v. Baches, 55 id. 379; Railroad Co. v. Godard, 72 id. 567; Railway Co. v. Jones, 76 id. 312; Railroad Co. v. Houston, 95 U. S. 697; Schofield v. Railway Co. 114 id. 615; 2 Borer on Bailroads, 1031, 1032.
    It was error to so modify the first instruction asked by appellant, as to leave it to the jury to say whether or not the deceased failed to exercise ordinary care to avoid the injury from the effects of which he died, if they found that he approached the crossing in question in a covered milk wagon having its sides enclosed, and did not look or listen for the approaching train, and that if he had looked or listened for the approaching train, he might have seen or heard it before driving or going on said crossing. The failure of the person injured to use his physical senses to avoid the injury at a crossing, is not merely evidence of negligence, but is'negligence itself. Railroad Co. v. Van Patten, 64 Ill. 510; Railway Co. v. Hunter, 33 Ind. 335 ; Am. Rep. 210; Railroad Co. v. Heilemann, 49 Pa. St. 60.
    Mr. W. C. Kueeeneb, for the appellee:
    It is not necessary to the validity of the ordinance that it should be signed by the mayor. It may have become an ordinance by being passed over his veto, or by his retaining the same, without action, for more than five days. But neither the mayor’s signature, nor the vote of the council originally passing it, or passing the same over his veto, or evidence of the fact of his retaining it more than five days, is a part of the ordinance. They are merely steps or facts necessary to make an ordinance.
    Under the certificate, the prima facie presumption is, that the ordinance was duly signed by the mayor, or that it has, in one of the other modes prescribed, become a law. Lindsay v. Chicago, 115 Ill. 122; Schott v. People, 89 id. 196; Byars v. Mt.Vernon, 77 id. 467.
    Negligence is a question of fact for the jury, and not a question of law. Railway Co. v. Haworth, 39 Ill. 346; Railroad Co. v. O’Connor, 119 id. 597; Railroad Co. v. Pennell, 94 id. 455; Pennsylvania Co. v. Frana, 112 id. 398; Pennsylvania Co. v. Marshall, 119 id. 399.
    The defendant’s first instruction, as asked, would have deprived the jury of their right to determine for themselves the question of negligence, for it sought to have the question determined by the court, which the court very properly refused, and accordingly so modified the instruction as to leave the question where it belonged. Such modification was proper. Negligence is a question of fact for the jury, except where the conclusion of negligence necessarily results from the statement of fact. If, from all the facts, the conclusion of negligence does not result, it is a question for the jury. Railroad Co. v. Pennell, 91 Ill. 455; Railroad Co. v. O’Connor, 119 id. 597; Railroad Co. v. Haworth, 39 id. 346; Pennsylvania Co. v. Frana, 112 id. 398.
    An omission to ring a bell or sound a whistle before reaching the crossing, constituted prima facie negligence. Railroad Co. v. Loomis, 13 Ill. 548; Railroad Co. v. Elmore, 67 id. 176; Railway Co. v. Elliot, 98 id. 481.
   Mr. Justice Bailey

delivered the opinion of the Court:

This was an action on the case, brought by Julia Voelker, administratrix of the estate of Edward Voelker, deceased, against the Terre Haute and Indianapolis Bailroad Company, to recover damages for the death of the plaintiff’s intestate. The trial, which was had before the court and a jury, resulted in a verdict in favor of the plaintiff for $3500, and for that sum and costs, the churt, after denying the defendant’s motion for a new trial, gave judgment for the plaintiff. Said judgment was affirmed by the Appellate Court on appeal, and by an appeal from that court the record is brought here for review.

The declaration contains five counts, but a demurrer having been sustained to the first and second, only the remaining three are brought up by the transcript of the record. Each of said counts alleges that the deceased, at the time he received the injuries of which he died, was riding, with all due care and caution, in a wagon drawn by two horses, along St. Clair avenue in the city of East St. Louis, and that at the point where said avenue crosses the track of the defendant’s railroad, the wagon in which he was riding was struck by a locomotive engine running on said railroad, and that the deceased thereby received the injuries of which he soon thereafter died.

The third count alleges a breach by the defendant of its statutory duty to cause a bell of. at least thirty pounds weighu to be rung or a steam whistle to be sounded on the engine at least eighty rods from the highway, and kept ringing or whistling until the highway was reached, and that by reason of such breach of its statutory duty, said locomotive engine collided with said wagon and inflicted said injuries'.

The fourth count alleges an ordinance of the city of East St. Louis limiting the speed at which passenger trains should be run in or through said city to ten miles per hour, and also alleges that the servants of the defendant, at the time the deceased was injured, were running its engine and train, within said city, at a rate exceeding ten miles per hour, to-wit, at the rate of thirty miles per hour, and that in consequence thereof the deceased received said injuries.

The fifth count merely alleges that the defendant, by its servants in charge of said locomotive engine and train, so negligently and carelessly run and drove the same, that by reason of such negligence and carelessness, said engine run against said wagon and inflicted said injuries, thereby causing the death of the deceased. r ■' -

The first question presented by the counsel for the defendant arises upon the evidence offered to prove the existence of the ordinance alleged in the fourth count. A document was offered containing what purported to be certified copies of two ordinances of the city of East St. Louis, and said ordinances were thereupon objected to by counsel for the defendant upon the specific ground that they were not signed by the mayor or city clerk of said city. This was the only objection made, and it being overruled, an exception was duly preserved by the defendant. The first of said ordinances provided, among other things, that no locomotive or train of cars should run or be drawn within the limits of said city at a greater rate of speed than six miles an hour, and the second was an amendatory ordinance, providing that no passenger train should run or be driven, within the limits of said city, at a greater rate of speed than ten miles an hour, and no other locomotive or train at a greater rate of speed than six miles an hour. Appended to each was a certificate of the city clerk, under his hand and the corporate seal of the city, that such ordinance was a true and correct copy of the original ordinance of the city as the same appeared of record in his office. The signature of the mayor did not appear at the bottom of either ordinance.

The charter of the city of East St. Louis empowers the city council of said city, by ordinance, to provide for and regulate various matters, and among others, “to direct and regulate the speed of locomotive engines and cars.” Said charter also authorized the city council to make, pass, publish, amend and repeal, all ordinances not inconsistent with the constitution of the United States or of this State, for the good government, peace and order of the city and the trade and commerce thereof, that might be necessary and proper to carry into effect the powers vested by said charter in said city. A subsequent section, and the one upon which the objection now under consideration is based, is as follows:

“All ordinances and resolutions shall, before they take effect, be placed in the office of the mayor, and if he shall approve thereof, he shall sign the same; and such as he shall not approve of, he shall return to the city council with his objections thereto. Upon such return, the vote by which such ordinance or resolution was passed shall be reconsidered; and if, after such reconsideration, a majority of all members elected shall agree, (by the ayes and noes, which shall be entered upon the. journal,) to pass the same, it shall go into effect; and if the mayor shall neglect to approve, or object to, or retain any ordinance or resolution for a longer period than five days after the same shall be placed in his office, as aforesaid, the same shall go into effect.” Private Laws of 1869, Yol. 1, page 896.

By this section, three separate modes are provided by which an ordinance, after being passed by the city council, may become operative, viz: 1, by the approval of the mayor, evidenced by his signature; 2, by a majority vote of the council on reconsideration after being returned by the mayor with his objections; and, 3, by being retained by the mayor more than five days. The objection offered is merely that the ordinances in question did not appear to have become operative by a particular one of these modes. The fact alleged, viz, that they had not been signed by the mayor, may be admitted, and the conclusion that they have never taken effect by no means follows. A specific objection based solely upon a particular fact is, strictly, a waiver of all objections based upon other facts not specified or relied upon. This rule is based upon the equitable consideration that, if the other objections had been made, it might have been within the power of the party offering the evidence to obviate them. If it had been objected that the ordinances had not gone into effect in either of the modes provided by the charter, the plaintiff might have been able to show that they had heen passed by the council over the may- or’s veto, or that they had become operative by his retaining them more than five days without signing them.

But the propriety of the admission of said ordinances in evidence may be placed on other grounds. The signature of; the mayor, where he approves an ordinance, is manifestly no j part of the ordinance itself. It is merely the evidence of his: approval required by the charter. But it is no more a part of the ordinance than are the minutes of the proceedings of the city council in which is recorded the vote by which the ordinance is passed. True, an ordinance can have no validity until it has been passed by the council and then placed in the mayor’s office, and afterwards approved and signed by him, or retained without action beyond the prescribed period, or passed over his veto. The ordinance, however, need not bear upon its face the evidence of all or any of these proceedings, except of course where it is signed by the mayor, such signature will necessarily appear.

Possibly if no provision had been made by statute as to the mode of proving the ordinances, it would have been incumbent on the party alleging their existence to prove each of the steps by which they were passed and given effect. Article 7, section 13, of the charter, however, provides as follows:

“All ordinances and resolutions of the city may be proven by the seal of the corporation; and when printed and published in pamphlet or hook form, and purporting to be printed or published by the authority of the city council, the same shall be received in evidence in all courts and places without further proof.”

Here the proof was made by the corporate seal and a certificate of the city clerk who was the proper custodian of the seal. This was all that was required to establish, at least prima facie, the existence of the ordinance and its terms. In Pendergast v. City of Peru, 20 Ill. 51, it was held, under a similar provision of the charter there in question, that a copy of the city by-laws certified by the city clerk and verified by the corporate seal, was a literal compliance with the charter, and was properly admitted in evidence. In Lindsay v. City of Chicago, 115 Ill. 120, where the question arose under the provisions of article 5, section 4, of the general statute for the incorporation of cities and villages, it was contended that the passage of the ordinance could be established only by the production of the journal containing the proceedings of the city council, shoving the vote by which it was passed, but it was held that a certified copy of the ordinance, attested by the clerk under the seal of the corporation, was competent evidence of its passage. In Schott v. The People, 89 Ill. 195, we said: “It is doubtless competent for the Legislature to enact that the simple production of the ordinance or a copy thereof shall be prima facie evidence that every step has been taken with reference to it, essential to make it a valid ordinance, ” and it was held that such was the effect of the section of the general incorporation act above mentioned.

Under these decisions as well as upon principle, it must be held, that the copies of the ordinances in this case, certified by the city clerk and authenticated by the corporate seal, were competent evidence tending to show, that said ordinances had been duly passed by the city council, and that they had gone into effect in one of the modes prescribed by the charter. ^

The only remaining questions in the case which are open for consideration here, arise upon the instructions to the jury. The discussion, so far as it is presented by the briefs of counsel, relates mainly to the defendant’s first instruction which was modified by the court and given to the jury as modified, and to the defendant’s third instruction which was refused. The defendant’s first instruction was as follows, the modifications consisting in striking out the words inclosed in brackets, and inserting those printed in italics:

“The court instructs the jury, that it is the duty of a person approaching a railroad crossing, to look along the line of the railroad to see if a train is coming, or to listen, or to use any other reasonable means of informing himself of an approaching train, before going on such crossing, [and if he fails or omits to do so, such omission on his part is negligence in itself,] and if the jury believe, from the evidence in this case, that the deceased, Edward Voelker, approached the crossing in question in this ease in a covered milk wagon which had the sides thereof closed, and that he did not look or listen for the approaching train, and that if he had looked or listened for the approach of said train he might have seen or heard said train before driving or going on said crossing, [then he] and that in so doing he failed to exercise ordinary care to avoid the injury which he received, [and] then the plaintiff can not recover, even though the jury may further believe, from the evidence, that the defendant’s servants or employes failed to ring the bell or sound the whistle as required by law, and wrere running said train at a greater rate of speed than ten miles an hour.”

The defendant’s third instruction which was refused was as follows:

“The court instructs the jury, that it is the duty of a person approaching the crossing of a railroad over a public highway, to listen and to look both ways along the railroad track for the approach of the railroad train, before going upon the railroad, and if he goes upon the track without taking such precautions to guard against an accident and sustains an injury in consequence of his failure to take such precautions, he can not recover, and if the jury believe, from the evidence, that the said deceased, Edward Voelker, went upon the crossing of the defendant’s railroad at St. Glair avenue without looking or listening for the approach of the train, and received the injury from which he died, then the plaintiff can not recover, and the verdict should be for the defendant.”

' The proposition raised by both of these instructions, and upon "which the Circuit Court ruled against the defendant, was, that going upon a railway track at the point where it crosses a highway or street, without looking or listening for approaching trains, is negligence per se, and that such conduct, in case of an injury at such crossing, constitutes such contributory negligence as will bar a recovery therefor. It has been the uniform doctrine of this court, that negligence is ordinarily ajquestion of fact for the jury. , Doubtless there may be conduct so clearly and palpably negligent, that all reasonable minds, without hesitation or dissent, would so pronounce it. When that is so, the inference of negligence may properly be. said to be a necessary one and such conduct may be treated as negligent per se. But as said in Cumberland Valley R. R. Co. v. Maugans, 61 Md. 53 : “When the question arises upon a state of facts on which reasonable men may fairly arrive at different conclusions, the fact of negligence can not be determined until one or the other of these conclusions has been determined by the jury. The inferences to be •drawn from the evidence must either be certain and incontrovertible, or they can not be decided upon by the court. Negligence can not be conclusively established by a state of facts upon which fair-minded men may well differ.” See also B. & O. R. R. Co. v. Owlings, 65 Md. 502.

It has frequently been said in judicial decisions in this State and elsewhere, that it is the duty of persons approaching a railway crossing, to look and listen before going upon the track, and that their failure to do so is negligence, but it will be found generally, though not uniformly, on examining the cases where such language occurs, that it has been used in discussing the duty as to care and caution in approaching a railway crossing, viewed as a mere question of fact, and not as a question of law. It is doubtless a rule of law that a person approaching a railway crossing is bound, in so doing, to exercise such care, caution and circumspection to foresee danger and avoid injury as ordinary prudence would require, having in view all the known dangers of the situation, but precisely what such requirements would be, must manifestly differ with the ever varying circumstances under which such' approach may be made. Ordinarily of course the diligent use of the senses of sight and hearing is the most obvious and practicable means of avoiding injury in such cases, but occasions may and often do arise where the use of those senses would be unavailing, or where their non-use may be excused. The view may be obstructed by intervening objects or by the darkness of the night. Other and louder noises, as is often the case in a city, may confuse the sense of hearing and render its use impracticable. The railway company, by its flagman or other agent or agency, may put the person off his guard and induce him to cross the track without resorting to the usual precautions. The duty may be more or less varied by the age, degree of intelligence and mental capacity of the party, and by a variety of other circumstances by which he may be surrounded. It follows that no invariable rule can be predicated qpon the mere act of failing to look or listen, but a jury, properly instructed as to the legal duty in respect to care and caution, of a person approaching a railway crossing, must draw from such act, in connection with all the attendant circumstances, the proper conclusion as to whether he is guilty of negligence or not.

Mr. Bishop, in his recent treatise on Non-Contract Law, sec. 1043, after referring to the decisions which seem to hold that the duty to look and listen is an absolute one, and that its omission is negligence per se, says: “But it is believed that most courts more accurately regard this sort of matter as mere evidence, like any other in the case; submitting all, with proper instructions, to the jury, yet with the exceptions recognized in the general law of negligence. To omit looking and listening where neither can do any good—as, where the track is hidden from sight, and other sounds drown the noise of the cars—is not contributory negligence. And there are other circumstances in which the rule of looking and listening can not, in the nature of this sort of thing, be inflexible. Therefore, to go upon the track in disregard of it is not necessarily and as a question of law negligence.”

In T. & P. Ry. Co. v. Chapman, 57 Texas, 75, it was held that a person approaching a railway track at a road crossing is bound to use such precautions as a prudent man would resort to under like circumstances, but any attempt by the court to prescribe the precise thing he should do in exercising such caution, would be an invasion of the province of the jury, by charging on the weight of evidence. In Lavarenz v. C., R. I. & P. R. R. Co. 56 Iowa, 689, the court, after reviewing various authorities, says: “These and many other cases which might be cited, establish the doctrine beyond question, that a person is not necessarily and as a question of law, negligent, in going upon a railroad track without looking and listening for approaching trains.” In Plummer v. Eastern R. R. Co. 73 Me. 591, it is held that the fact that a person who, in attempting to cross a railroad, does not at the instant of stepping on it, look to ascertain if a train is approaching, is not conclusive of a due want of care on his part.

The foregoing authorities are entirely in harmony with repeated decisions of this court, but as the contrary doctrine is very strenuously insisted upon by counsel for the defendant in this case, we have been disposed to. discuss the question more at length than the condition of the decisions in this State would otherwise have seemed to demand. In Pennsylvania Co. v. Frana, 112 Ill. 39S, the trial court refused to instruct the jury that it was the duty of a person, before attempting to cross a railway track, to stop if necessary, and look and listen for the approach of trains, before entering upon such track, and that if by such precautions he could have discovered the approach of the defendant’s train and avoided the injury, he could not recover. In affirming the judgment we said: “It is no doubt true that it is the duty of a person about to cross a railroad track, to approach cautiously, and endeavor to ascertain if there is present danger in crossing; and where the railroad tracks and crossings are so situated that the approach of the train can not be seen, it may be the duty of a person about to cross to stop and look, to ascertain if the train is coming; but it is always a question of fact for the jury to determine, from the evidence, whether the person injured has exercised proper care and caution in crossing a railroad track, and not a question of law. It is the province of' the jury to determine whether the plaintiff was guilty of negligence and not for the court to tell the jury that certain facts constituted negligence.”

In C. & E. I. R. R. Co. v. O’Connor, 119 Ill. 586, in discussing the same proposition, we said: “It is only when the conclusion of negligence necessarily results from the statement of fact, that the court can be called upon to say to the jury that a fact establishes negligence, as a matter of law. If the conclusion of negligence, under the facts stated, may or may not result, as shall depend on other circumstances, the question is one of fact for the jury.” See also, C. & A. R. R. Co. v. Pennell, 94 Ill. 448; Schmidt v. O. d N. W. Ry. Co. 83 id. 405; C. & N. W. Ry. Co. v. Moranda, 108 id. 576.

It is insisted that if the court ruled correctly in modifying the defendant’s first and in refusing its third instruction, it, by the same rule, must be held to have committed an error in giving to the jury the plaintiff’s third instruction, which held, in substance, that if the defendant omitted to perform its statutory duty in relation to ringing a bell or sounding a whistle on its engine, such conduct constituted a prhna facie case of negligence. We are unable to concur with counsel in this view. A statute commanding an act to be done, creates an absolute duty to perform such act, and the duty of performance does not depend upon and is not controlled by surrounding circumstances. Non-performance of such statutory duty, resulting in injury to another, may therefore be pronounced to be negligence as a conclusion of law.

Several questions of fact were, at the instance of the defendant, submitted to the jury for special findings, one of which was modified by the court and submitted as modified. The action of the court in making such modification is assigned for error. Said question was as'follows, the modification consisting in the insertion of the words in italics :

“Could the deceased, Edward Voelker, if he had used ordinary ca/>'e and diligence, have seen or heard the defendant’s train approaching the crossing over the St. Clair avenue in East St. Louis, if he had looked or listened for its approach to said crossing, before he drove or went on to said crossing, at the time he received the injury from the effect of which he died?”

To this question the jury returned a negative answer. It is clear that the question, as proposed by the defendant, called for a finding as to mere evidentiary facts, none of which, if found, could have been controlling. There was no error therefore in refusing to submit it to the jury in that form. Whichever way the jury might have found, their finding could have had no effect upon the general verdict. On this point we refer to what we have more fully said in our discussion of the same proposition in C. &. N. W. Ry. Co. v. Dunleavy, ante, 132.

The residue of the propositions discussed by the Appellate Court in its opinion do not seem to be insisted upon by the defendant’s counsel here, and we therefore infer that, as to those questions, they acquiesce in the rules laid down by that court. None of the assignments of error'insisted upon here are in our opinion sustained, and the judgment of the Appellate Court will therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    The United States Life Insurance Company v. William Vocke, Admr.

      Filed at Ottawa October 31, 1889.

    1. Evidence—coroner’s inquisition—admissibility. The coroner’s inquest over a dead person is required by statute to be sealed up and returned to the clerk of the circuit court. It thus becomes a public record of the county, and, as such, it is competent evidence in another proceeding, tending to prove any matter properly before the coroner which appears on the face of the inquest. The court does not hold that such evidence is conclusive, but only that it is competent to be considered.
    2. On the trial of an action brought on' a policy of life insurance, which contained a clause that if the assured, within three years from the date thereof, should die by any act of self-destruction whatever, whether sane or insane, the defendant, under a proper plea, offered in evidence the coroner’s inquest on the dead body of the assured, show- j ing that the latter came to his death on, etc., by a pistol shot fired byi his own hand, while laboring under a fit of temporary insanity, as tending to show the fact of suicide, which the court, on objection, excluded: Held, that the inquisition of the coroner was competent evidence, and the trial court erred in excluding it from the jury.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    This was assumpsit, originally brought by Elizabeth Kielgast, administratrix of the estate of Otto Wilhelm Kielgast, deceased, against the appellant, to recover upon a policy of life insurance on the life of the intestate. The policy was dated July 22, 1884, and contained, among other things, a condition that if, within three years of said date, the insured should die by any act of self-destruction, whether voluntary or involuntary, whether sane or insane, the contract of insurance should become null and void. The insured died January 17, 1885. The material facts appear in the opinion of the court.

      Messrs. Isham, Lincoln & Beale, for the appellant:
    The proofs presented by or on behalf of the plaintiff, operate, at the trial, as admissions against the plaintiff. Bliss on Life Insurance, (2d ed.) see. 265; Insurance Co. v. Watson, 23 Mich. 486.
    The certified copy of the verdict of the coroner’s jury was admissible in evidence as a part of these proofs. Whether its effect as evidence might subsequently have been limited, or could properly have been limited by the court, is another matter. The paper itself was admissible in evidence. Insurance Co. v. Newton, 22 Wall. 32; Newton v. Insurance Co. 2 Dill. 154; Insurance Co. v. Higginbotham, 95 U. S. 380; Lawrence v. Life Ins. Co. 5 Bradw. 280; Life Ins. Co. v. Lawrence, 8 id. 488.
    Inquisitions, generally, are admissible in evidence as a species of. judicial records somewhat analogous to judgments in rem. They differ from judgments in rem in not being conclusive, since such judgments are, until set aside in a proper legal proceeding, binding against all the world. Inquisitions of a coroner stand upon an equal footing with others in respect to their admissibility in evidence. Starkie on Evidence, (10th Am. ed.) *404, *405 ; 2 Phillips on Evidence, (5th ed.) *262, *268; 1 Greenleaf on Evidence, sec. 556; 2 Taylor on Evidence, (6th ed.) sec. 1487.
    Inquisitions of lunacy are admissible in evidence. Banker v. Banker, 63 N. Y. 409; 1 Wharton on Evidence, sec. 812; 2 Wharton on Evidence, sec. 1254; 2 Phillips ón Evidence, (5th ed.) *266.
    ^ Inquests of office are admissible in evidence, and a coroner’s "inquest was, at common law, simply an inquest of office. Rex v. Eriswell, 3 T. R. 722; Stokes v. Dawes, 4 Mason, 268 ; Starkie on Evidence, (10th Am. ed.) *404; 3 Jacob’s Law Die. title “Inquests, ” p. 454.
    The coroner’s inquisition would have been prima facie proof' that the insured committed suicide. Association v. Palmer,
      25 Beav. 605; Walther v. Life Ins. Co. 65 Cal. 417; Jervis on Coroners, 318, et seq; 2 Stevens on Nisi Brins, 1642.
    Mr. George F. Westover, for the appellee:
    The proceedings before the coroner were properly excluded from the jury, because they were no part of plaintiff’s proof of death of the assured. The certified copy of the proceedings before the coroner was not voluntarily furnished the defendant by the plaintiff’s attorney as part of the proofs of death, but was handed separately to the defendant’s agent, twenty-one days after the proofs of death were served, and because the agent stated to the plaintiff’s attorney that it would be required.
    The verdict at the coroner’s inquest could not bind plaintiff in this case. Railway Co. v. McGrath, 115 Ill. 172.
    If the papers relating to the inquest had been attached to the original proofs, they could be introduced merely to show conformity to the requirements of the policy that proofs be served. Lawrence v. Life Ins. Co. 5 Bradw. 280; Life Ins. Co. v. Lawrence, 8 id. 488; Bliss on Life Insurance, 381.’
    The declarations of the plaintiff in the sworn proofs of death are admissible, but the contents of other documents not forming part of the proofs, not essential to show the death, even if delivered by her to the defendant, can be admitted in evidence for no purpose, for her or against her. Insurance Co. v. Higginbotham, 85 U. S. 380; Cook v. Railroad Co. 5 Lans. 401; Cluff v. Life Ins. Co. 99 Mass. 317.
    In the one case, where the proceedings before the coroner were proper to be admitted on behalf of defendant, there were no proofs that the assured was dead except the coroner’s verdict and affidavits attached thereto, and plaintiff testified that from an inspection of those proofs, defendant had admitted the assured to be dead. Insurance Co. v. Newton, 22 Wall. 32.
    In this case there was considerable testimony tending to show the manner of .the death of the assured, and the jury found he died by an accident. The matter was fairly submitted to the jury, and there are no objections urged against the instructions. Keels v. Life Association, 29 Fed. Rep. 198.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought by Elizabeth Kielgast, administratrix of the estate of Otto Wilhelm Kielgast, against the United States Life Insurance Company of the city of New York, to recover' the amount of a policy issued by the company to the deceased on the 22d day of July, 1884. To the declaration the defendant pleaded the general issue, and also filed one special plea, in which it set up that the policy of insurance contained a provision, that if, within three years from the date of the policy, the insured should die by any act of self-destruction whatever, the policy should become null and void, and that the insured, Otto Wilhelm Kielgast, did die by an act of selLdestruetion, to-wit, by shooting himself with a pistol, by means whereof the policy of insurance became void.

It appears that a coroner’s inquest was held over the body of the deceased by the coroner of Cook county and a jury, and in making proofs of death a certified copy of the record of the coroner’s inquest, consisting of the inquisition and the deposition of three witnesses, was returned to the insurance company as a part of the proofs of death. The inquisition shows on its face that Kielgast came to his death on the 17th day of January, 1885; that the death was caused by a pistol shot fired by the hand of the deceased while laboring under a fit of temporary insanity. On the trial the defendant offered in evidence the certified copy of the inquisition, which had been returned to defendant as a part of the proofs of death. The court excluded the evidence. The defendant then offered in evidence the original papers of which those previously offered were copies, offering the entire set of papers together, including the verdict and testimony. This evidence was also ex-eluded. The defendant excepted to the decision of the court in excluding the evidence so offered, and the determination of the ruling of the court on the evidence is the principal question presented by the record. The inquisition was as follows:

“State of Illinois, )

County of Cook. 5 SS‘

“An inquisition was taken for the People of the State of Illinois, at 38 -Grant Place, in the city of Chicago, in said county of Cook, on the 18th day of January, A. D. 1885, before me, Henry L. Hertz, coroner in and for said county, upon view of the body of Otto W. Kielgast, then and there lying dead, upon the oaths of six good and lawful men of the said county, who, being duly sworn to inquire, on the part of the People of the State of Illinois, into all the circumstances attending the death of the said Otto W. Kielgast, and by whom the same was produced, and in what manner and when and where the said Otto W. Kielgast came to his death, do say, upon their oaths as aforesaid, that the said Otto W. Kielgast, now lying dead at 38 Grant Place, in said city of Chicago, county of Cook, State of Illinois, came to his death on the 17th day of January, A. D. 1885; and we, the jury, find that 0. W.

Kielgast came to his death on the night of January 17, 1885, by a pistol shot fired by his own hand, while laboring under a fit of temporary insanity.

“In testimony whereof, said coroner and the jury of this inquest have hereunto set their hands the day and year aforesaid.

Douglas Barstow, Foreman, Louis Gasselin,

0. W. Haynie, H. M. Gillette,

Angelo Faiel, M. J. Shuts.

Henry L. Hertz, Coroner.

P. Knoff, Deputy.”

Among the depositions was one given by appellee, as follows:

“The deceased is my husband; he was thirty-nine years of age, and was born in Germany; insurance agent by occupation. On the evening of January 17, about nine o’clock, P. M., I heard a shot fired in his room; we hollered, and went down stairs, and sent my hired girl for the police. When he came we went upstairs, where we found the deceased dead. All of a week ago he said he would kill himself,—that was, every day for the last six days. On the evening of January 17th, when he arrived home, he kissed his little boy, and said, ‘Charlie, this is the last kiss that you will give your father.’ For the last week he was drinking more than usual.

her Elizabeth X Kielgast.” mark.

We shall not stop to inquire whether the court erred in excluding the offered evidence as a part of the proofs of death, but we will proceed at once to determine the question whether the inquisition was competent evidence for the defendant, under its special plea, tending to prove that Kielgast came to Ms death by his own hand.

The office of coroner, at the common law, is an ancient one, —so much so, that Jarvis on Coroners, page 2, says that the office of coroner is of so great antiquity that its commencement is not known. In Bacon’s Abridgment (vol. 2, p. 428,) it is said: “The powers and duties of a coroner-are, by the common law, both judicial and ministerial. His judicial authority relates to inquiries into the cases of sudden death, with the aid of a jury, super visum corporis, where the death has happened.” And Blackstone says, (1 Blackstone’s Com. *348): “The office and power of a coroner are also, like those of a sheriff, either judicial or ministerial, but principally judicial. This is in great measure ascertained by statute 4 Edw. I, cle officio coronatoris, and consists, first, in inquiring, when any person is slain, or dies suddenly, or in prison, concerning the manner of his death. And this must be super visum corporis, for if the body be not found the coroner can not sit.”

In Giles v. Brown, 1 Mills’ Court Rep. (7 S. C. 230,) it is said: “Coroners are very ancient officers at the common law. * * * |n England they were chosen hy the freeholders of the county, * * * and their powers, when appointed, are either judicial or ministerial. The judicial power of a coroner is, first, to inquire into or concerning the death of a man, when one is slain or dies suddenly, hy a jury of inquest, super visum corporis, and this must be done at the place where the death happened; and if any one be found guilty, by this inquest, of murder or other homicide, he is to commit him to prison for further trial. They are also to make inquiry * * * of all things which occasioned it, after which it is his duty to certify the whole of this inquisition under his seal and the seals of the jurors, together with the evidence therein, to the Court of King’s Bench or the next assizes.”

The earliest English statute relating to coroners was passed in the fourth year of Edivard I, and it is said by Jarvis on Coroners, 29, that it was merely directory, and in affirmance of the common law. The first act of the legislature of this State regulating the duties of coroners was passed March 2, 1819. The next statute was passed January "20, 1821. (Laws of 1821, p. 22.) This act, upon an examination, will be found to be substantially like the statute of 4 Edw. I. Our present statute does not differ materially from the earlier acts. Indeed, coroners are now required to proceed substantially as at common law, and as required by the statute of 4 Edw. I. Under section 9 of our present statute relating to coroners, they are made conservators of the peace in their respective counties. Section 13 makes it the duty of the coroner, upon information that the dead body of any person is found or lying within the county, supposed to have come to his death by violence or any undue means, to repair to the place where the dead body is, and take charge of the same, and summon a jury of six lawful men of the neighborhood to assemble where the body is, and, upon a view of the body, to inquire into the cause and manner of the death. Section 17 makes it the duty of the jury, after being sworn, to inquire how, in what manner, and by whom or what, the said dead body came to its death, and of all other facts of and concerning the same, together with all material circumstances in any wise related to or connected with the said death, and make up and sign a verdict and deliver the same to the coroner. Sections 19 and 20 are as follows:

“Sec. 19. If the evidence of any witness shall implicate any person as the unlawful slayer of the person over whom the said inquisition shall be held, the coroner shall recognize such witness, in such sum as he may think proper, to be and appear at the next term of the circuit court for the said county, there to give evidence of the matter in question, and not depart without leave, except that in the county of Cook the recognizance shall be to the Criminal Court of Cook county.

“Sec. 20. If any witness shall refuse to enter into such recognizance, it shall be the duty of the coroner to commit the witness so refusing to the common jail of the county, there to remain until the next term of the said court; and the coroner shall carefully seal up and return to the clerk of the court the verdict of the jury, and the recognizances, and it shall be the duty of the clerk to carefully file and preserve the same.”

Section 21 requires the coroner to reduce to writing the testimony of each witness examined at the inquest, which testimony shall be filed by the coroner in his office and preserved. Section 22 provides that the coroner shall keep a record of each inquest. Section 26 provides that if a person implicated by the inquest is not in custody, the coroner shall apprehend and commit such person to the jail of the county, there to remain until discharged by due course of law.

The foregoing are the principal sections of the statute which relate to the inquest of the coroner, and, from the nature and character of the proceeding as it has been recognized by courts and law writers, we must determine whether a coroner’s inquisition should be used as evidence in a case of this character. It will be observed that the evidence of all witnesses examined before the coroner is required to remain in his office, while the inquest inust_be sealed up and returned to the clerk of the circuit court of the county, where it shall he filed. Thus the inquest becomes, by force of the statute, a record of the circuit court,—ajiubHc record of the county where the inquest is held. It is a record containing the results of a public in- í,¡ quiry, made by a public officer under authority of law, relat-1 ing to matters in which the public have an interest. Shall it be held that a public record of this character shall not be evidence, in a judicial proceeding, tending to prove the facts found to be true on the face of such record ? We are not prepared to adopt a rule of that kind; moreover, we believe the weight of authority to be in favor of the admission of such evidence.

Starkie (vol. 1, p. 258,) seems to lay down the rule that an inquisition is admissible in evidence. He says: “In Sergeoron v. Sealy, 2 Atk. 412, Lord Hardwicke said that inquisitions of lunacy, inquisitions post mortem, and others, were always admissible, though not conclusive. In the case of Burridge v. Earl of Essex, 2 Ld. Raym. 1292, an inquisition post mortem setting out the tenor of a deed, was held to be evidence of the deed.”

Greenleaf, (vol.’ 1, see.' 556,) in speaking of inquisitions, says: “These are the result of inquiries, made under competent public authority, to ascertain matters of public interest and concern. They are said to be analogous to proceedings in rem,—being made in behalf of the public,—and that therefore no one can strictly be said to be a stranger to them. But the principle of their admissibility in evidence between private persons seems to be, that they are matters of public and general interest, and therefore within some of the exceptions to the general rule in regard to hearsay evidence. * ■* * The general rule in regard to these documents is, that they are admissible in evidence, but that they are not conclusive, except against the parties immediately concerned and their privies.” See, also, 2 Phillips on Evidence, (5th ed.) 262, and 2 Taylor on Evidence, (6th ed.) sec. 1487, where the same doctrine is announced.

In The People v. Devine, 44 Cal. 452, the question arose whether the evidence of a witness taken before the coroner could be used to contradict the evidence of the same witness subsequently given on a trial in court. In considering the question it is said: “The testimony had been returned into

court as part of certain proceedings, judicial in their character, had before an officer appointed by law and expressly charged with the duty of reducing, or causing it to be reduced, to writing, and returning it into court. At common law, ,as well as under the statute of Edward I and our statute concerning coroners, which are but declaratory of the common law, the coroner holding an inquest super visum corpoñs is in the performance of functions judicial in their character, (R. v. White, 3 E. & E. R. 144; Rep. Const. Ct. So. Ca. 231; 32 Missouri R. 375,)—so distinctly judicial that he is protected under the principles which protect judicial officers from responsibility in a civil action brought by a private person. (Garnett v. Farrand, 6 Barn. & Cress. 611.) Whether his proceedings be entered upon the coroner’s roll at common law and the statute of Edward, or returned into court under our own statute, they amount to entries concerning matters of j>ublic interest, macle under the sanction of an official oath, and in compliance, or presumed compliance, with the requirements of law. In our investigations we have not found any authority in text-hooks or adjudicated cases which distinguishes between these and any other official proceedings taken and returned in the discharge of official duty, as to their admissibility in evidence upon the principle referred to." See, also, Fielder v. Silk, 3 Campb. 126, and Silas v. Brown, 38 E. C. L. 601.

The citation of other authorities would seem to be unnecessary. We are satisfied, both upon principle and authority, that the coroner’s inquisition was admissible in evidence. The inquisition was made by a public officer, acting under the sanction of an official oath, in the discharge of a public duty enjoined upon him by the law, and when it is returned into court, and is filed, we see no reason why it should not be competent evidence tending to prove any matter properly before the coroner which appears upon the face of the inquisition. "We do not hold that suchjsyidence is conclusive, but only that it is competent evidence to be considered.

Reliance is placed by the plaintiff on Pittsburg, Cincinnati and St. Louis Railway Co. v. McGrath, 115 Ill. 172, as an authority sustaining the ruling of the trial court. That was an action brought against the railway company to recover damages for the killing of plaintiff’s intestate, and on the trial the court excluded the deposition of a witness taken before the coroner. That ruling was approved; but whether a coroner’s inquisition was admissible in evidence was not raised nor was it decided, and hence the decision cited and relied upon has no bearing whatever on the question presented by this record.

We are of the opinion that the court erred in excluding the inquisition, and for that reason the judgments of the Appellate and Superior courts will be reversed, and the cause remanded to the Superior Court for another trial.

Judgment reversed.

Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in its decision here.

Separate opinion by Mr. Justice Baker :

I concur in the view of the ease taken in the opinion of Mr. Justice Craig. The Appellate Court evidently misapprehended the scope and effect of the decision of this court in Pittsburg, Cincinnati and St. Louis Railway Co. v. McGrath, 115 Ill. 172. That case is authority to sustain the action of the Superior Court in excluding from the jury the depositions taken at the coroner’s inquest, but not to justify the ruling against the admission in evidence of the inquisition itself,—that is, the verdict of the jury,—as independent evidence of suicide. In fact, no question in regard to the inquisition arose in that ease.' The courts below were probably misled by the inadvertent use in one place, in the opinion, of the word “inquisition,” instead of the word “deposition” or “testimony.” It is apparent, from the context, that one or the other of these latter words was intended, for otherwise the expression is inaccurate.

At common law, and in this State until the adoption of the constitution of 1848, a coroner and his jury holding an inquest post mortem constituted a court with judicial powers. Our present statute in regard to coroners is substantially a re-enactment of the statute of 4 Edward I, and that was held to be merely in affirmance of the common law. In early days, the finding of the coroner and his jury was regarded as a judicial determination of a very absolute and binding character, and my Lord Coke considered an inquisition of felo de se, taken by the coroner, super visum corporis, to be conclusive evidence of the fact against the executors or administrators of the deceased. Through the influence of Lord Hale, the doctrine was modified to the extent it was settled such inquisition might be traversed, he conceiving it unreasonable that the executors or administrators should be concluded by an inquisition which might be taken by the coroner behind their backs, without an opportunity afforded them to make answer.

The rule which now obtains, as appears from the text-books, and also, almost without exception, from the decided cases, is that inquisitions post mortem are admissible nuevidence, but are not conclusive. The general doctrine, as stated in 1 Green-leaf on Evidence, (sec. 556,) is, that these inquisitions are within the exceptions to the rule in regard to hearsay evidence, and are distinguished from other hearsay evidence in having peculiar guarantees for their accuracy, and are the results of inquiries, made under competent public authority, to ascertain matters of public interest and concern, and that no one can be considered a stranger to them. The only difficulty in respect to the admissibility in evidence of the inquisition itself, is found in the fact that section 1 of article 6 of the constitution of 1870 provides that “the judicial powers, except as in this article is otherwise provided, shall be vested in one Supreme Court, circuit courts, county courts, justices of the peace, police magistrates, and in such courts as may be created by law in and for cities and incorporated towns.” Said article 6 disposes of all the judicial power of the State, and completely exhausts the subject, and a coroner’s inquest is not provided for therein. So it is certain that in this State, and under its present constitution, the coroner and his jury do not constitute a court, and are not clothed with judicial powers, as was the case at common law.

The inquisition not being the result of a judicial proceeding, is the old common law rule of evidence, that it is competent testimony, thereby abrogated ? I think not, and am of opinion that common law principles and the analogies of the law, and the decisions of this court, justify such conclusion. The provision found in section 1 of article 5 of the constitution of 1848 was substantially that contained in the present constitution. An act of March 3, 1845, made provision for an inquiry before a sheriff and a jury, into the right of parties claiming property on which the sheriff had levied an execution. In Rowe v. Bowen, 28 Ill. 116, the point was made that this inquest or trial of the right of property, created by the statute for the purpose of enabling the sheriff to interpose the verdict of a jury as his justification for selling the property or restoring it to the claimant, as the verdict might direct, had been abolished by the constitution of 1848. The court held otherwise, and that said law was in no respect in derogation of the constitution. It was held that the verdict of a jury, under this statute, afforded a complete indemnity to the sheriff, and it was there said: “In the inquiry or inquest the sheriff decides nothing, nor does he, nor does the jury, pronounce any judgment. The jury sign and render a verdict only, and to the effect that from the facts before them the property, prima facie, belongs to the claimant, or to the defendant in the execution, as the case may be, so far as the writ is concerned.” Of course, under this decision, the verdict of the jury found at the sheriff’s inquest would .have been admissible as testimony in favor of the sheriff in suit brought by the claimant for selling the property, or in suit brought by the execution creditor for abandoning the levy, or against the sheriff in suit prosecuted by the claimant for selling after a verdict in his (the claimant’s) favor.

In Andrews v. The People, 75 Ill. 605, it was held that the, act of 1873, making the collector’s return in writing and under oath to the sheriff or county treasurer, of the taxes levied by a town or city, due and unpaid, prima facie evidence that all the requirements of the law had been complied with in the assessing and levying of the taxes therein returned as unpaid, and that said taxes were due and unpaid, is not liable to the constitutional objection that it gives the collector judicial power to determine the question of delinquency, since the report is only made prima facie evidence of that fact.

In Spencer et al. v. The People, 68 Ill. 513, Porter v. Rockford, Rock Island and St.Louis Railroad Co. 76 id. 561, East St.Louis Connecting Railway Co. v. The People, 119 id. 182, St. Louis Bridge and Tunnel Railroad Co. v. The People, 127 id. 627, and in numerous other cases, this court has held that the valuation for taxation of certain kinds of property is, by the statute, committed to the State Board of Equalization, and that its decision is judicial in its nature, and can only be assailed for fraud or want of jurisdiction. So, also, at common law, inquisitions of lunacy and inquests-of office are admissible in evidence, and it is not understood that the provision of our State constitution in question has rendered them incompetent as testimony. Moreover, under our statutes, the findings, reports or schedules of various commissioners, boards and officers are either made competent evidence or prima facie evidence in express terms, or are given the legal effect of evidence. See section 145, chapter 24, of the Be vised Statutes of 1874, in respect to commissioners appointed to make special assessments; section 8 of the Extortion and Unjust Discrimination act, in respect to schedules made by the Bail-road and Warehouse Commissioners; section 11, chapter 2, in regard to auditors, in actions of account; the provisions of chapter 10, with reference to the awards of arbitrators; the provisions of chapter 41, in regard to commissioners, to assign dower; the provisions of chapter 106, in regard to commissioners, to make partition; and various other statutory provisions of like character, too numerous to specify.

My conclusion is, that while, under the constitution, the coroner and coroner’s jury no longer compose a court with judicial powers, yet the inquisition or verdict made by them, and which is required to be returned to and filed in the office of the clerk of the circuit court, and which thereby becomes a record of that court, is competent testimony, and that the ruling of the trial court in the ease at bar, refusing to admit in evidence the verdict of the coroner’s jury which inquired into the matter of the death of Otto Wilhelm Kielgast, deceased, was erroneous, and I concur in the conclusion that for that error the judgment should be reversed, and the cause remanded to the Superior Court for another trial.


author: Mr. Chief Justice Craig

text:
    The Chicago and Alton Railroad Company v. The People ex rel. Thomas H. Cooley, Collector.

      Filed at Springfield April 5, 1889.

      1. Taxation—railroad track—by whom, to be assessed-r-and what included therein. Land held by a railroad company for a right of way is required by law to be assessed for taxation by the State Board of Equalization, and not by the local assessor. This rule is not limited to the right of way of the main track, but embraces the right of way of all the side-tracks, switches and turn-outs as well. An assessment of such property by the local assessor is void.
    2. A side-track of a railroad company leading from the main track to a stone quarry, and used for the purpose of procuring stone for ballasting the road, for the purposes of taxation must- be regarded as “railroad track.”
    Appeal from the County Court of Pike county; the Hon. Edwabd Doocy, Judge, presiding.
    The main track of the Chicago and Alton Eailroad Company is located across the south-west quarter of the south-east quarter of section 10, township 7 south, range 2 west, in Pike county, and the right of way over this land is two hundred feet wide, the track running nearly east and west. North of the main track, and commencing a short distance west of the tract of land in question, there is a side-track running east, and gradually curving to the north, known as the “Quarry track,” and some lé71 feet in length. This side-track leaves the right of way of the main track about half way across the tract of land above mentioned. The side-track has a right of way of one hundred feet, or fifty feet on each side of the center of its track. There is also a branch of this side-track between it and the main track, known as the “Screening-bin track.” The railroad company, in March, 1882, purchased Spj^, acres of land in the north-west corner of said forty-acre tract joining its right of way, upon which there is a stone quarry. North of the railroad track the company erected a large frame building, a part of which stands upon the right of way of the main line, and a part on the right of way of the side-track known as the “Quarry track.” The building contains two stone crushers. The stone blasted from the quarry on the 81|-g- acre tract is carried into this building on the quarry track, and crushed, and then used to ballast the road-bed of the railroad. There is also an engine and boiler-house north-east of the building, located o.n the right of way of the side-track. The location of the main and side-tracks, the stone quarry and the buildings, is shown by a plat in the record.
    In May, 1887, the defendant company returned to the county clerk of Pike county a schedule, sworn to, showing, among other things, property held for the right of way, and the length of the main track and all side and second tracks on the tract of land first above mentioned, which included the main track and all the side-tracks and rights of way above mentioned, and also stated the value of the superstructures and improvements thereon, as above described. Said company also returned a list of its real estate in said township other than that denominated “railroad track, ” which included the 8t-|q acres of land above mentioned, less the right of way of the sidetrack, and also a list of its personal property, as required by law. The township assessor assessed the whole of the 8-j|-g-acre tract as land, and the State Board of Equalization assessed that part of said tract used as right of way for the side or quarry track, as “railroad track.” The company paid the taxes assessed by the State board, but refused to pay on the assessment made by the local assessor, in so far as the land occupied by the side-track was involved. The county collector of Pike county made application for judgment against the land to pay the taxes arising on the assessment made by the local assessor, and on the hearing, judgment was rendered in favor of the collector, to reverse which the railroad company has appealed.
    Mr. A. C. Matthews, and Messrs. Wike & Higbee, for the appellant:
    If the property in question belongs to that class known in the Revenue law as “railroad track,” then it was assessable by the State Board of Equalization, and the township assessor had no power to make the assessment, and the judgment based on such assessment is erroneous. Railroad Co. v. People, 98 Ill. 350.

      Under the Eevenue law, the exclusive power to assess railroad track and rolling stock of railway companies is conferred upon the State Board of Equalization, and therefore an assessment of property used as railroad track, by the local assessor, is void. Railroad Co. v. People, 98 Ill. 350.
    Land held in actual use by a railroad company for sidetracks, switches and turn-outs, must be regarded, within the meaning of the Eevenue law, as a part of the right of way of the company, notwithstanding it may have machine shops, depots, round-houses and other structures thereon. The Eevenue law anticipated that such structures would be erected on the company’s right of way, and needs express provision, when that was done, that they should form a part of the right of way, and be taxed as such. Railroad Co. v. People, 98 Ill. 350; Railroad Co. v. Weber, 96 id. 443; Railroad Co. v. People, 4 Bradw. 468; Railroad Co. v. Miller, 72 Ill. 144; Railroad Co. v. Goar, 118 id. 134; Railroad Co. v. People, 99 id. 464.
    One of the crushers, and a little more than half of the building, is on the right of way to the main track, which has been assessed by the State board. A double assessment of the same property is void. Const, art. 9, sec. 1; Railway Co. v. Miller, 72 Ill. 144.
    Mr. W. E. Williams, and Messrs. Orr & Crawford, for the appellee:
    It is the duty of the town assessor to assess all real estate,, including stations and other buildings and structures thereon, other than that denominated “railroad track,” belonging tO' any railroad. Starr & Curtis’ Stat. p. 2044, chap. 120, sec. 46 (latter half); Railroad Co. v. People, 4 Bradw. 468.
    “Bailroad track” means right of way, including the superstructures of main, side or second track, and turn-outs, and the stations and improvements of the railroad company on such right of way. Starr & Curtis’ Stat. p. 2044, chap. 120, sec. 42; Hack v. Railroad Co. 86 Ill. 359; Railway Co. v.
      Miller, 72 id. 148; Railroad Co. v. Paddock, 75 id. 616 ; Railroad Co. v. Weber, 96 id. 448.
    Upon application by a county collector for judgment against lands for delinquent taxes, no one can object on account of mistakes, irregularities or excessive valuation, unless fraud is shown. The only place such objections can be made is before the town board. Starr & Curtis’ Stat. p. 2054, chap. 120, sec. 86; Spencer v. People, 68 Ill. 510; Life Ins. Co. v. Poliak, 75 id. 294; People v. Iron Co. 89 id. 116; Humphreys v. Nelson, 115 id. 45; Mix v. People, 116 id. 265; Railroad Co. v. Hodges; 113 id. 323; Railway Co. v. People; 119 id. 182; People v. Lots in Ashley, 122 id. 297.
    Because a tract of land may have one or two, or more, sidetracks on it, it can not be regarded as a right of way, but the land on which the side-track is, must be used by the railroad company as a right of way, for the purpose of operating its road as a common carrier. Railroad Co. v. People, 98 Ill. 360.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

The question presented by this record is, whether the strip of land 100 feet wide and 1472 feet in length, extending from the main track in and to the stone quarry, known as the “Quarry track,” is, within the meaning of the Eevenue law, “railroad track,” or is it real estate of the railroad company other than railroad track. If it is the former, then it was lawfully assessed by the State Board of Equalization, and the local assessor had no authority to assess it; if the latter, then it was within the power of the local assessor to make the assessment, and the judgment of the county court sustaining the assessment and rendering judgment against the property for the tax was right.

Section 41 of the Eevenue act provides, “that railroad companies shall, in the month of May in each year, when required, make out and file with the county clerks of the respective counties in which the railroad may be located, a statement or schedule showing the property held for right of way, and the length of the main and all side and second tracks and turnouts in such county, * * * giving the width and length of the strip of land held in each tract through or into which said road may run, and the number of acres thereof. They shall also state the value of improvements and stations located on the right of way.”

Section 42 provides: “Such right of way, including the superstructures of main, side or second track and turn-outs, and the stations and improvements of the railroad company in such right of way, shall be held to be real estate for the purposes of taxation, and denominated ‘railroad track,’ and shall be so listed and valued.”

Section 47 provides: “The county clerk shall return to the assessor of the town a copy of the schedule of the real estate other than ‘railroad track, ’ and of the personal property, except rolling stock, pertaining to the railroad; and such real and personal property shall be assessed by the local assessor.” Section 48 provides “that the railroad company shall return to the Auditor a schedule of the property denominated ‘railroad track,’ giving the length of the main and side or second tracks and turn-outs, and showing the proportions in each county,” etc.

Section 109 provides “that the State Board of Equalization shall assess the railroad property denominated ‘railroad track’ and ‘rolling stock,’ and the amount so determined and assessed shall be certified by the Auditor to the county clerk.” From these provisions of the Eevenue law it is manifest that the local assessor has not been clothed with power to assess “railroad track, ” and that the assessment of such property can only be made by the State Board of Equalization. By the terms of section 41 it is seen that the railroad company is required to return a schedule showing the property held for right of way, the length of the main and all side and second tracks and turn-outs. This section is followed by section 42, which declares that such right of way shall be held to be real estate for the purposes of taxation, and denominated “railroad track,” and shall be so listed and valued. The right of way spoken of in these two sections is not limited to the right of way of the main track, but embraces the right of way of all side-tracks and turn-outs as well.

In discussing this question in Chicago and Alton Railroad Co. v. The People, 98 Ill. 354, we used the following language: “We can see no reason why the term ‘right of way’ should be confined to the land over which the main track of a railroad should be constructed. The land upon which a side-track, a switch or a turn-out is built, and in actual use by the company in the business for which it was organized, for all practical purposes is as much held for right of way as is the land upon which the main track is constructed. * * * We are therefore of the opinion that the land held and in actual use by a railroad company for side-tracks, switches and turn-outs must be regarded, within the meaning of the Eevenue law, as a part of the right of way of the company.”

In Chicago and Northwestern Ry. Co. v. Miller, 72 Ill. 144, town lots alleged to be used as right of way by a railroad company were held to be “railroad track,” and not subject to assessment by the local assessor. It is there said: “We must take the averment in the bill, that these lots are used by appellant as right of way, confessed, as it is, by the demurrer, to be true. It then follows, that under the 42d section they fall under the denomination of ‘railroad track,’ and we perceive no authority to assess them otherwise.”

In Ohio and Mississippi Railroad Co. v. Weber, 96 Ill. 448, it is held, that under our statute the property of railroads, for the purpose of assessment, is classified, and specific names are adopted to designate all the property embraced in a class,

—that the term “railroad track” embraces property held for right of way, including superstructures thereon.

In Chicago and Alton Railroad Co. v. The People, supra, thirty-two acres of land in actual use by the railroad company in the operation of its railroad was held to be “railroad track,” and not liable to be assessed by the local assessor. This decision was followed and approved in Chicago and Alton Railroad Co. v. The People, 99 Ill. 466, where it was held: “Where a lot is returned by a railroad company in its list as being used for tracks, side-tracks, etc., in connection with the road, and for railroad purposes, and the board of equalization assess the same, an assessment by the local assessor will be a double assessment, and the tax extended upon such assessment will be illegal.” It was also held, that where only a portion of a lot is used for railroad purposes, to that extent it is properly returnable to the board of equalization for assessment.

In Peoria, Decatur and Evansville Railroad Co. v. Goar, 118 Ill. 136, the rule announced in the Alton case, supra, was again approved, and it was held, “that under the Revenue law the exclusive power to assess ‘railroad track,’ which includes right of way, with the superstructures of main, side or second track and turn-outs, and the station and improvements thereon, is conferred upon the State Board of Equalization, and therefore an assessment of the property used as ‘railroad track,’ by the local assessor, is void.”

Upon the hearing in the county court, it appeared, from the evidence, that one hundred feet was the necessary and proper width of the right of way for the quarry track. It also appears that the rock quarried and brought in on the track is' crushed in the building provided for that purpose by the company, and used to ballast the Chicago and Alton railroad, and that the ballasting is a necessary part of the work of keeping the road in repair. The question then is, Avhether a sidetrack (as the quarry track is but a side-track when constructed by a railroad company and used for the sole purpose of keeping the road-bed in proper repair) is to be regarded, within the meaning of the Revenue law, as “railroad track.” Under the former decisions of this court we think it is. If land upon which a railroad company may erect machine shops, car shops and round-houses, where repairs are made for the company’s rolling stock, may be regarded as “railroad track,” for the same reason and upon the same principle a quarry track, constructed for the sole purpose of providing material to keep the road-bed in proper repair, may be regarded as “railroad track.” This side-track was necessary to enable the railroad company to properly operate its line of road under its charter. If the road is to be operated with due regard to a safe shipment of property and the safety of the life of the passenger, the road-bed must be kept in good condition.

In conclusion, we think the local assessor had no power to assess the quarry track, and the county court erred in rendering judgment for the tax arising from such assessment.

The judgment of the county court will be reversed, and the cause remanded.

Judgment reversed.

Mr. Justice Scholfield : I did not concur in the definition of “right of way” given in Chicago and Alton Railroad Co. v. The People ex rel. 98 Ill. 350, and my opinion has undergone no change in that respect since. It necessarily follows that I do not concur in the views expressed by a majority of the court in the present case.

Mr. Justice Magbudeb, dissenting:

I do not concur in the opinion of the majority. Is it lawful for a railroad company to engage in the business of quarrying stone ? A railroad company is a common carrier. Its business is to carry passengers and freight for hire. It has no power under its charter to do anything else, and the interests of the people require that it should not be permitted to do anything else.

The reason given for allowing the appellant company to operate a stone quarry is, that it needs the stone for the purpose of repairing its road-bed. The evidence, however, does not show that such is the only purpose, for which it quarries stone, or that all the stone so quarried is used for such purpose alone. But even if it requires stone to make repairs upon its road-bed, it is not, for that reason, justified in engaging in the business of quarrying stone. If there is a surplus beyond what it needs for its own use, what becomes of such surplus? Is it sold upon the market? Will the company charge itself freight for hauling stone from its own quarry ? Can any individual citizen, owning and operating a stone quarry on the line of the company’s road, and being obliged to pay freight for having the same carried to market, compete with the company which pays no freight ?

A railroad company needs coal for the purpose of propelling its engines. May it, for that reason, own and operate a coal mine ? If it does so, what other owners of coal mines along the line of its road will be able to compete with it ?

A railroad company needs food for the passengers and employes whom it carries upon its trains. Shall it, therefore, buy farms and raise butter and eggs and chickens and cattle and grain, and erect mills to convert the grain into flour, and slaughter houses to change the cattle into edible meats ? If so, what chance have the farming interests of the country to live?

Will not the decision in this ease be used as a precedent to justify the creation of monopolies that are dangerous to the industries, if not to the liberties, of the people ?

The opinion of the maj ority also holds that the stone quarry and the side track running into it from the main-track, and the machinery and buildings and crushers connected with the operation of the stone quarry, are a part of the railroad track, and, therefore, subject to assessment by the State Board of Equalization, and not by the local assessor. This doctrine is based upon the decision of this Court in C. & A. R. R. Co. v. The People ex rel. 98 Ill. 350. It was held in that case, that thirty two acres of ground with the car-shops, machine shops, blacksmith shops, foundry, round-house, freight depot, stock yards, paint shops, etc., were a part of the railroad track, and, as such, could not be assessed by the local assessor. But is it not true, that the act of the legislature, upon which the decision referred to is based, fails to distinguish between railroad track and railroad right of way ?

The fact is, that the system prevailing in this State, by which the property of the individual citizen is required to be assessed by a local assessor who is near by and can easily learn its value, while the property of the corporations is permitted to be assessed by the State Board of Equalization which is afar off and can, with difficulty, learn the real value, is all wrong. The State Board of Equalization should be confined to the equalization of assessments already made, and should not be allowed to make original assessments of property. If it should do so in any case, it ought to be only in the case of railroad track. The track is one entire thing, running through towns and counties, and across the width or length of the State, and, therefore, it may be said that it ought to be assessed as an entirety, and not in parts. But the same is not true in regard to the right of way. The right of way is usually a strip of land two hundred feet wide, one hundred feet on each side of the track. The value of 100 feet of ground in a town, village or city can easily be ascertained by the local assessor. The one hundred feet in such town, city or village have a different value from that of the 100 feet on the prairie. Bight of way is land, and its parts are capable of being valued according to location. Why should it not be assessed by the local assessor?

Why should the lot, 100 feet deep, of the individual citizen be assessed by the local assessor while the lot of the railroad company of the same depth is assessed by the distant board of equalization ? It is a matter of public notoriety that the property of the great corporations is assessed too low, and (thereby escapes its just share of taxation. The Board, which meets at the State Capitol, cannot ascertain the values as accurately as the assessors, who live near the property assessed. Is the policy of this State, "which thus distinguishes between corporate property and other kinds of property, just and fair? The home of the individual is valued by a local official and bears its fair proportion of the public burdens, but the great freight house of the railroad company is declared to be a part of the “track,” and is valued by a board of officials, whose very organization renders it impossible for them to make correct estimates. And yet this Board has been virtually clothed with the functions of a judicial body. The grossest irregularities cannot subject its action to review. Nothing but fraud will justify an investigation into the correctness of its conclusions.