{
  "id": 5426852,
  "name": "The Chicago and Eastern Illinois Railroad Company v. Antoine Goyette",
  "name_abbreviation": "Chicago & Eastern Illinois Railroad v. Goyette",
  "decision_date": "1890-05-14",
  "docket_number": "",
  "first_page": "21",
  "last_page": "30",
  "citations": [
    {
      "type": "official",
      "cite": "133 Ill. 21"
    }
  ],
  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "24 Ill. 197",
      "category": "reporters:state",
      "reporter": "Ill.",
      "opinion_index": -1
    },
    {
      "cite": "3 Gilm. 227",
      "category": "reporters:state",
      "reporter": "Gilm.",
      "case_ids": [
        2462120
      ],
      "opinion_index": -1,
      "case_paths": [
        "/ill/8/0227-01"
      ]
    },
    {
      "cite": "58 Ill. 389",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        5237315
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/58/0389-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 657,
    "char_count": 19707,
    "ocr_confidence": 0.486,
    "pagerank": {
      "raw": 6.924701133850369e-07,
      "percentile": 0.9650336757085065
    },
    "sha256": "3606b7da56bf6ffef99b28885433a98fbac9aeec67aba31a350bd3fc782fc682",
    "simhash": "1:b6ab2fd21ac6b7c1",
    "word_count": 3400
  },
  "last_updated": "2023-07-14T19:35:59.913163+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "The Chicago and Eastern Illinois Railroad Company v. Antoine Goyette."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Bailey\ndelivered the opinion of the Court:\nThis was an action on the case, brought by Antoine Goyette against the Chicago and Eastern Illinois Railroad Company, to recover damages for the destruction of certain buildings, meadows, hay, grain and other property of the plaintiff, by fire communicated from one of the defendant\u2019s locomotive engines.\nThe declaration contains two counts, the first of which alleges, that the defendant suffered and permitted large quantities of dead grass, dry weeds- and other combustible material to remain on its right of way, by means whereof fire was emitted and thrown from a certain locomotive engine of the defendant on its railroad, and ignited said dead grass, dry weeds and\" other combustible material, and spread and was communicated from and by the same to and upon the lands of the plaintiff, and destroyed said property.\nThe second count alleges that, while a certain locomotive engine of the defendant and under its control, was passing upon its railroad near the land, premises, buildings and personal property of the plaintiff, divers sparks and brands of fire escaped and were thrown from said locomotive engine, by and through the carelessness and negligence of the defendant, upon the said land, premises, buildings and personal property of the plaintiff, whereby said property was destroyed.\nThe defendant pleaded not guilty, and at the trial the jury found the defendant guilty and assessed the plaintiff\u2019s damages at $1385, and for that sum and costs the court, after denying the defendant\u2019s motion for a new trial, gave judgment for the plaintiff. Said judgment having been taken to the Appellate Court by writ of error, was affirmed, and the defendant now brings the record here by appeal from the judgment of that court.\nThe two counts of the declaration proceed upon different and in some respects inconsistent theories as to the way in which the fire originated, and the nature of the negligence with which the defendant is chargeable. According to the first count the fire ignited among the dead grass and dry weeds on the defendant\u2019s right of way and spread and was communicated' therefrom to the plaintiff\u2019s land, the negligence charged being, permitting said dead grass and dry weeds to remain on said right of way. The second count alleges that the sparks and brands of fire were thrown from the engine on to the plaintiff\u2019s land and ignited a fire there, and that the escape of said sparks and brands of fire from the engine was through the negligence of the defendant. There was evidence applicable to and tending to sustain each of these counts, and while the record fails to show upon which of these theories the jury proceeded, still, as they found a general verdict for the plaintiff on both counts, it is not within the province of this court to review their finding, since to do so would necessitate the investigation of mere-questions of fact as to which the judgment of the Appellate Court is final. Nor is it material whether, in the opinion of the jury the evidence sustained the first or the second count, since the conviction of the defendant upon either is sufficient, to sustain the judgment.\nThe first error assigned is upon the refusal of the trial court, to grant the defendant\u2019s motion for a continuance. The clerk of that court has incorporated into the record proper a memorandum that, just as the jury were about to be impanelled for the trial of the cause, the plaintiff, by, leave of the court, amended his declaration by striking out of the description of the property alleged to have been destroyed, the words, \u201cone-barn,\u201d and inserting in lieu thereof, \u201cone shed on side of barn 14x40 feet, and one pig-shed 8x16 feet;\u201d that the defendant thereupon moved for a continuance on account of said amendment, and supported his motion by an affidavit, and that the-plaintiff having elected to admit said affidavit, the motion for a continuance was overruled. It is not even stated in said-memorandum that any exception was preserved by the defendant to the order of the court denying its motion. The bill of exceptions shows that on the trial, said affidavit for a continuance was offered and read in evidence to the jury by the-defendant, but neither the motion for a continuance, the decision of the court denying the motion, nor any exception to-such ruling was preserved in the bill of exceptions. Motions of this character and the decision of the court thereon can be made part of the record only by bill of exceptions. It follows that said ruling is not so preserved as to be subject to review on appeal.\nComplaint is also made of the admission by the court of evidence in relation' to the loss by fire of the two buildings described in the amendment to the declaration. Assuming, as in the present state of the record we must, that the amendment was properly made, and that the motion for a continuance based upon the allegation of surprise was properly denied, we can perceive no tenable objection to said evidence. It was clearly competent and tended to support the declaration, and it would have been error to exclude it. It also follows that the instruction asked by the defendant directing the jury to exclude from their estimate of damages the value of the two buildings described in the amendment to the declaration was properly refused.\nThe jury, at the instance of the defendant, were required to return special findings as to several questions of fact, and it is insisted that one att least of said special findings is inconsistent with the general verdict, and that judgment therefore should have been rendered upon such finding in favor of the defendant. The question submitted was this: \u201cDid the fire in question in this case begin on the defendant\u2019s right of way, or did it begin on the plaintiff\u2019s property?\u201d The answer to this question returned by the jury was: \u201cNo proof of evidence.\u201d This can scarcely be said to be any finding at all, as it is very difficult if not impossible \"to tell what the jury meant by it. But the mere failure of the jury to answer a question submitted to them, or the return by them of an irresponsive answer, will not entitle the party at whose instance the question, was \u201csubmitted to have judgment in his favor. That is required by the statute only when the special finding is inconsistent with the general verdict.. Nor, in our opinion, will* the failure by the jury to answer, or their returning an insufficient answer, ordinarily at least, entitle the party to a new trial. He should make the objection at the time the verdict is returned and before the jury is discharged, and then-if there is no answer or the answer is irresponsive, the court may direct the jury to retire and perfect their verdict.\nBut giving the answer in this case the interpretation most favorable to the defendant, it may be held to mean, that there was no evidence in the case from which the jury could say \u2022decisively whether the fire begun on the right of way or on the plaintiff\u2019s land. Interpreted thus, it amounted to a confession by the jury of their inability to answer the question either way, or, in other words, to a finding that it was not proved whether the fire originated in one place or the other. Such finding is clearly immaterial, unless the case, as made by the pleadings and evidence, is so circumstanced, that no recovery \u2022can be had, so long as that question is unsettled. We are of the opinion that such is not the case here.\nIn determining whether this is so or not, we must assume as proved everything which the evidence tends to prove. We must therefore assume the escape of the fire from the defendant\u2019s engine, causing the fire which destroyed the plaintiff\u2019s property; also the fact that such escape of fire was owing to \"the defendant\u2019s negligence, such negligence being proved, prima facie, by force of the statute, by the mere fact that the fire which destroyed the plaintiff\u2019s property was communicated from the defendant\u2019s engine, and by the further fact shown by the evidence, that on the same day and while making the same trip, fires were set by sparks escaping from said engine at various places along the line of the railroad for several miles both ways from the plaintiff\u2019s farm. From the last named tact the inference fairly arises, either that the engine was not in proper condition, or that it was improperly managed. The evidence also tended to show, that although the defendant\u2019s, section men had attempted, two or three days before the fire in question, to remove the dead grass and dry weeds from the defendant\u2019s right of way, they had done so only in part, and that a considerable amount of such combustible material was left'remaining. There was also evidence that, whether the fire broke out on the right of way or on the plaintiff\u2019s land, it in fact burned to some extent the grass and weeds on the right of way.\nThese being the facts, it does not seem to be material whether the fire started on the right of way or on the plaintiff\u2019s land. As the evidence tended to sustain the charge of negligence in both counts, if the fire started on the right of way, the evidence warranted a recovery under the first count, and if it started on the plaintiff\u2019s land, it warranted a recovery under the second-count. It was unquestionable that the fire originated in one- or the other of these places, and a recovery being warranted, in either case, the jury were justified in finding a verdict for the plaintiff without determining decisively whether it originated in one or the other of these places.\nThe defendant assigns for error the giving of the following, instruction at the instance of the plaintiff:\n\u201cThe court instructs the jury that, if the right of way was: not clear of dry weeds and combustible materials, but that-the fire took on said right of way in consequence of such combustible material being there, and was thus communicated to the plaintiff\u2019s property, then in law the defendant would be-.liable without regard to the condition of the engine.\u201d\nThis instruction holds, in effect, that a failure on the part-of the defendant to keep its right of way clear of dry weeds- and combustible material was negligence per se, and the only-criticism made upon it is, that it fails to use the word \u201cdangerous\u201d before the words \u201ccombustible materials.\u201d It is not-disputed that a failure to perform a duty commanded by the-statute may properly be denominated negligence per se, but it is objected that the instruction fails to follow the language of' the statute. The second section of the act of 1874 in relation to fencing and operating railroads provides as follows: \u201cIt-shall be the duty of all railroad corporations to keep their right-of way clear from all dead grass, dry weeds and other dangerous combustible material, and for neglect shall be liable to the penalties named in section one.\u201d 2 Starr & Cur. 1933.\nIt must be admitted that, under this statute, a failure by a railroad company to keep its right of way clear of combustible-material, other than dead grass and dry weeds, can not be held to be negligence per se, unless such combustible material is \u201cdangerous.\u201d The statute seems to assume that dead grass. and dry weeds left by a railroad company on its right of way are in their nature dangerous, and the duty is imposed upon railroad companies to keep their rights of way clear of those and other dangerous combustible material. The instruction, to be accurate, 'should have used the word \u201cdangerous,\u201d but under the evidence in this case, the error was not a material \u2022one. The only combustible material shown by the evidence to have been on the defendant\u2019s right of way was dead grass and dry weeds, which the statute, by implication, pronounces \u2022dangerous, and the instruction could not have been understood by the jury as having reference to any other kind of combustible material. As applied to dead grass and dry weeds the word \u201cdangerous\u201d was unnecessary, and so in this case its \u25a0omission was harmless.\nFor the same reason there was no material error in modifying an instruction asked by the defendant, in which the defendant attempted to enumerate the various acts on its part which, if proved, would establish its freedom from negligence, and so defeat a recovery, by inserting the words, \u201cand that the right of way was free from combustible material.\u201d As there was no evidence of any combustible materials except those which by the statute are declared to be per se dangerous, the \u2022omission in the modification of the word \u201cdangerous\u201d could have wrought no prejudice to the defendant.\nThe following instruction was asked by the defendant, and was given after striking out that part of it in brackets:\n\u201cThe mere fact that fire from the defendant\u2019s locomotive \u2022caused the plaintiff\u2019s damages is only prima facie evidence and not conclusive. [If the defendant has proved by competent evidence, that it used the best and most approved means and methods for preventing damages by fire from its locomotive, such proof is sufficient to overcome said prima facie evidence of negligence.\u201d]\nThe portion of the instruction stricken out was clearly calculated to mislead the jury. It might and most likely would have been understood by them as holding that the prima facie inference of negligence would be rebutted by proof merely that the defendant had in use the best and most approved appliances for preventing damages by fire, irrespective of whether they were at the time in suitable order and repair, or whether there was negligence in the way in which they were controlled and managed. To overcome the prima facie inference of negligence which arises, by force of the statute, from the mere fact that damages have been caused by fire communicated from a locomotive engine, it must appear not only that the engine was provided with the best and most approved appliances, but also that they were at the time in suitable order and repair, and that there was no negligence in their use and management. C. & A. R. R. Co. v. Quaintance, 58 Ill. 389; C. & A. R. R. Co. v. Clampit, 63 id. 95; T. W. & W. Ry. Co. v. Larmon, 61 id. 68; P. C. & St.L. Ry. Co. v. Campbell, 86 id. 443.\nWe are of the opinion that the record is free from material error, and the judgment of the Appellate Court will therefore be affirmed.\nJudgment affirmed.",
        "type": "majority",
        "author": "Mr. Justice Bailey"
      }
    ],
    "attorneys": [
      "Mr. W. H. Lyford, for the appellant:",
      "Mr. C. R. Starr, for the appellee."
    ],
    "corrections": "",
    "head_matter": "The Chicago and Eastern Illinois Railroad Company v. Antoine Goyette.\nFiled at Ottawa May 14, 1890.\n1. Negligence\u2014combustible materials on right of way\u2014d/uty of railroad, companies. Under section 2 of the act of 1874, in relation to fencing and operating railroads, making it the duty of all railroad corporations to'keep their right of way clear from all dead grass, dry weeds and other dangerous combustible material, a failure of a railway company to keep its right of way clear of combustible material other than dead grass and dry weeds can not be held to be negligence per se, unless such combustible material is dangerous; but a failure to perform a duty commanded by statute may be properly denominated negligence per se.\n2. In an action against a railway company, to recover for the burning of the plaintiffs property by fire communicated by an engine to the right of way, the court, for the plaintiff, instructed the jury, \u201cthat if the right of way was not clear of dry weeds and combustible materials, but that the fire took on said right of way in consequence of such combustible material being there, and was thus communicated to the plaintiff\u2019s property,\u201d then, in the law, the defendant would be liable, without regard to the condition of the engine: Held, that the instruction should properly have used the word \u201cdangerous\u201d before the words \u201ccombustible materials;\u201d but as the only combustible materials shown to have been upon the right of- way were dead grass and dry weeds, the omission of that word was harmless error.\n3. Same\u2014escape of fire from, locomotive engine\u2014use of proper appliances. To overcome the prima facie inference of negligence, which arises from the mere fact that damage has been caused by fire communicated from a locomotive engine, it must appear, not only that the engine was provided with the best and most approved appliances, but also that they were at the time in suitable order and repair, and that there was no negligence in their use and management.\n4. Pbactice\u2014special questions to the jury\u2014failure to return proper answers. The mere failure of the jury to answer a question submitted to them, or the return by them of an irresponsive or unintelligible answer, will not entitle the party at whose instance the question was submitted, to have judgment in his favor. That is required by the statute only when the special finding is inconsistent with the general verdict.\n5. The failure of the jury to answer, or their returning an insufficient answer, ordinarily, at least, will not entitle the party asking the same, to a new trial. He should object before the jury is discharged, so that, . if the objection be well taken, the court may send them back to perfect their verdict.\n6. In an action against a railway company for the loss of property by the negligent escape of fire from a locomotive, it was charged in the declaration that the fire was communicated first to dry grass, etc., on the right of way, and from thence to plaintiff\u2019s premises; and in another count, that the fire communicated from the locomotive to plaintiff\u2019s premises. The proof showed clearly that the fire originated in one or the other of these ways, but left it in doubt, there being evidence supporting each count. It was held, that the jury were justified in returning a verdict for the plaintiff, without determining decisively whether the fire originated in one or the other of these places. In such case it is immaterial whether the fire started on the right of way or on the plaintiff\u2019s land.\n7. Bum of exceptions\u2014motion for continuance. If a party wishes to assign for error the refusal of the court to grant a continuance on the ground of an amendment of the declaration, he must preserve the motion for the continuance, the decision of the court denying the same, and his exception to such ruling, in a bill of exceptions. If he does not so preserve these matters, the ruling can not be reviewed by this court.\n8. Pleading and evidence\u2014in case of an amended declaration. Where a declaration to recover damages for the loss of property by fire through negligence is amended, so as to show the loss of a shed instead of a barn, and the amendment is properly made, it will be clearly competent for the plaintiff to support his amendment by proof of the loss as alleged.\nAppeal from the Appellate Court for the Second District;\u2014 heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. N. J. Pillsbury, Judge, presiding.\nMr. W. H. Lyford, for the appellant:\nThe amendment of a declaration in a matter of substance is good ground for a continuance. Hawks v. Lands, 3 Gilm. 227; Brown v. Smith, 24 Ill. 197; Link v. Iron Works, id. 551; Mills v. Executors of Bland, 76 id. 381; Wray v. People, 78 id. 212; Dacey v. People, 116 id. 555.\nThe court erred in admitting evidence-as to the value of the two sheds, and in refusing, the instruction to disregard such evidence.\nThe court erred in denying defendant\u2019s motion for judgment in its favor on the special findings of fact.\nThe court erred in giving plaintiff\u2019s second instruction. There is a material difference between combustible materials and dangerous combustible materials. The word \u201cdangerous\u201d was essential to a correct statement of the law in this instruction. It was error to modify the defendant\u2019s tenth instruction asked.\nMr. C. R. Starr, for the appellee."
  },
  "file_name": "0021-01",
  "first_page_order": 21,
  "last_page_order": 30
}