Chicago & Northwestern Railway Co. v. Pendergast

Appellate Court of Illinois

Chicago & Northwestern Railway Co. v. Pendergast

75 Ill. App. 133, 1897 Ill. App. LEXIS 723

DecidedMarch 24, 1898

StatusPublished

This text of 75 Ill. App. 133 (Chicago & Northwestern Railway Co. v. Pendergast) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Chicago & Northwestern Railway Co. v. Pendergast, 75 Ill. App. 133, 1897 Ill. App. LEXIS 723 (Ill. Ct. App. 1898).

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Opinion

Mr. Justice Sears

delivered the opinion of the Court.

The gist of the action is the alleged wrongful conversion by appellant, acting through its servant, the conductor, Riggs. It was incumbent upon appellee to show upon the trial that Riggs was the servant or agent of appellant. The only evidence bearing upon this issue was that of appellee and Riggs. Appellee testified: “ I think I was on a Chicago & Northwestern train. The train that I was on was marked Chicago & Northwestern.” Riggs testified : “ I was running train No. 2, on the Chicago, St. Paul, Minneapolis & Omaha Railway. The Chicago & Northwestern Railway Company did not have anything to do with that train at that time. The train was running over the Omaha -tracks, and was an Omaha train. I was in the employ of the Chicago, St. Paul, Minneapolis & Omaha Company. The Chicago, St. Paul, Minneapolis & Omaha Railway Company and the Chicago & Northwestern Railway Company are entirely distinct corporations. I have worked for this railroad since 1892, as a passenger conductor.”

When this testimony is measured it is apparent that the verdict is wholly unsupported by any substantial evidence as to the agency of the conductor Riggs, or, at least, that it is against the decided preponderance of the evidence. If it may be said that in the absence of other evidence, the testimony of appellee would have been quite sufficient to make a prima facie showing as to the agency, yet, whatever inference might have been warranted from appellee’s testimony that the name of appellant was. on the train, and whatever weight might have been accorded appellee’s deduction therefrom—viz., that he thought it was appellant’s train—if there had been no other evidence in this behalf, is entirely swept away by the unqualified, positive testimony of Eiggs, who knew whereof he spoke, and who spoke under oath and with certainty. If these two witnesses, being the only witnesses upon this issue, had each testified directly and positively as to the fact, a jury might be warranted in finding that the greater credibility of the testimony of the one created a preponderance over that of the other. Durant v. Eogers, 87 Ill. 508; Dickinson v. Gray, 72 Ill. App. 55.

But when one of the witnesses, without pretending to knowledge, merely testifies to his thought or supposition, we can conceive of no method of measurement by which his testimony can be found to establish a preponderance over that of one who must, from his situation, know the precise truth as to the fact.

There is no necessity of any extended discussion of the other questions presented by the briefs. That the verdict was excessive can not now matter.

If it had appeared from the evidence that the conductor was the servant of appellant, we think that no question could have been successfully raised as to the form of action, and the question of whether the taking was wrongful would then have been dependent upon the facts as to the transaction between appellee and the agent of appellant who sold the ticket, and hence a question for the jury.

The judgment is reversed and the cause remanded.

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Mr. Justice Sears

delivered the opinion of the Court.

The gist of the action is the alleged wrongful conversion by appellant, acting through its servant, the conductor, Riggs. It was incumbent upon appellee to show upon the trial that Riggs was the servant or agent of appellant. The only evidence bearing upon this issue was that of appellee and Riggs. Appellee testified: “ I think I was on a Chicago & Northwestern train. The train that I was on was marked Chicago & Northwestern.” Riggs testified : “ I was running train No. 2, on the Chicago, St. Paul, Minneapolis & Omaha Railway. The Chicago & Northwestern Railway Company did not have anything to do with that train at that time. The train was running over the Omaha -tracks, and was an Omaha train. I was in the employ of the Chicago, St. Paul, Minneapolis & Omaha Company. The Chicago, St. Paul, Minneapolis & Omaha Railway Company and the Chicago & Northwestern Railway Company are entirely distinct corporations. I have worked for this railroad since 1892, as a passenger conductor.”

When this testimony is measured it is apparent that the verdict is wholly unsupported by any substantial evidence as to the agency of the conductor Riggs, or, at least, that it is against the decided preponderance of the evidence. If it may be said that in the absence of other evidence, the testimony of appellee would have been quite sufficient to make a prima facie showing as to the agency, yet, whatever inference might have been warranted from appellee’s testimony that the name of appellant was. on the train, and whatever weight might have been accorded appellee’s deduction therefrom—viz., that he thought it was appellant’s train—if there had been no other evidence in this behalf, is entirely swept away by the unqualified, positive testimony of Eiggs, who knew whereof he spoke, and who spoke under oath and with certainty. If these two witnesses, being the only witnesses upon this issue, had each testified directly and positively as to the fact, a jury might be warranted in finding that the greater credibility of the testimony of the one created a preponderance over that of the other. Durant v. Eogers, 87 Ill. 508; Dickinson v. Gray, 72 Ill. App. 55.

But when one of the witnesses, without pretending to knowledge, merely testifies to his thought or supposition, we can conceive of no method of measurement by which his testimony can be found to establish a preponderance over that of one who must, from his situation, know the precise truth as to the fact.

There is no necessity of any extended discussion of the other questions presented by the briefs. That the verdict was excessive can not now matter.

If it had appeared from the evidence that the conductor was the servant of appellant, we think that no question could have been successfully raised as to the form of action, and the question of whether the taking was wrongful would then have been dependent upon the facts as to the transaction between appellee and the agent of appellant who sold the ticket, and hence a question for the jury.

The judgment is reversed and the cause remanded.

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75 Ill. App. 133, 1897 Ill. App. LEXIS 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chicago-northwestern-railway-co-v-pendergast-illappct-1898.

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