52 290 52 290 Syllabus. "The jury are instructed that if they believe, from the evidence, that Mr. Tiffany left any furniture with Mr. Parker, and that Mr. Parker has not sold the same, or converted it to his own use, or disposed of, or assumed dominion over the same, inconsistent with the rights of the plaintiff, then before. Mr. Tiffany can recover the value of such furniture from Mr. Parker, he must have demanded it from Mr. Parker; and unless the jury believe, from the evidence, that Mr. Tiffany made such demand before bringing this suit, they can not allow the plaintiff anything in this action for the value of goods, neither sold, nor converted, nor disposed of, nor treated as above stated." This instruction, asked by appellant himself, fully warranted the jury in finding for all the goods. He admits he received them, and fails to produce them or to show their loss or destruction. What other conclusion can be drawn than that he had sold, converted, or disposed of them. He must have done one or another of these things with the goods, and the instruction impliedly admits that if he did either, then he was liable. No other reasonable construction can be given to this instruction. And as the jury have found in strict accordance with it, the question as to the form of action can not be raised. The judgment of the court below is affirmed. Judgment affirmed. ILLINOIS CENTRAL RAILROAD COMPANY v. MARTIN WELDON, Administrator, etc. 1. WITNESS-COMPETENCY-under act of 1867. In an action against a railroad company to recover damages for the death of a person caused by the alleged negligence of an employee of the company, such employee is a Syllabus. competent witness, under the act of 1867, in behalf of the company, notwithstanding his interest in the result of the suit by reason of his liability over to the company. 2. ERROR WILL NOT ALWAYS REVERSE-where a witness ruled to be incompetent is rendered competent by a release. Where a witness was improperly ruled to be incompetent on the ground of interest, and was afterwards rendered competent, under the common law, by means of a release, and allowed to testify, such erroneous ruling will not avail the party against whom it was made, as he had the full benefit of the witness' testimony. 3. NEGLIGENCE—of contributory negligence. In an action against a railroad company to recover damages for the death of a person, caused by the alleged negligence of the company while the deceased was engaged in unloading a coal car, it was deemed the central question whether the deceased used proper care and caution in entering upon the car under the circumstances then existing, the company's employees being at the time engaged in switching upon the track where the coal car was standing, in making up a train; for however discreet and careful the deceased may have been when on the car, the question remained, and to be submitted to the jury, was he justified in being there at that time, and under the circumstances? 4. INSTRUCTION-should be based upon the evidence. In such an action, brought under the statute, for the benefit of the widow and next of kin, there was no evidence that the deceased was fitted by nature or education, or by disposition, to furnish to his children instruction, or moral, physical or intellectual training, and for want of such evidence, it was held to be a misdirection to the jury, to instruct them that such training and instruction by the deceased, of his children, were proper elements to consider in ascertaining the pecuniary loss suffered by the children. 5. MEASURE OF DAMAGES-in such action. In such an action, the damages can be only for the pecuniary loss to the widow or next of kin; nothing is to be allowed by way of solace. 6. SAME what may be considered as a proper element of damages. In estimating the pecuniary injury, the jury may, in a proper case, where there is evidence authorizing them to consider the subject, take into consideration the support of the widow of the deceased, and the minor children, and the instruction, and physical, moral and intellectual training of the minor children by the deceased. 7. SAME of the amount of damages—when excessive. In an action of this character, it appeared the deceased was a common laboring man, who left a widow and several minor children, but what wages he was receiving or earning was not shown, yet a verdict of $5000 was regarded too much, in view of there being no evidence that he earned, annually, as much even as one half the interest on that sum. Some evidence should be given of the 52 290 e208 8274 52 290 e211 1284 e211 1286 52 290 c113a1386 Statement of the case. profits of the labor of the deceased, and what he might probably earn for the future support of his family, to justify so large a verdict in such a case. APPEAL from the Circuit Court of Whiteside county; the Hon. W. W. HEATON, Judge, presiding. This was an action on the case, brought under the statute, by Martin Weldon, as administrator of Christopher Weldon, deceased, for the benefit of the widow and next of kin, against the Illinois Central Railroad Company, for wrongfully causing the death of the said Christopher. The circumstances attending the accident were briefly these: the deceased, being in the employment of a coal dealer, as a laborer in unloading coal from cars at the company's depot in Dixon, in this State, on the day of the accident had been unloading coal from a car standing on one of the tracks, and on returning to his work, after a short absence, he found the coal car removed from the place at which he had been unloading it, it having been drawn away with some other cars by the employees of the company, who were engaged at the time in switching upon that track in making up a train. The coal car was soon put back in its former position, when the deceased got into the car and commenced the work of shoveling out the coal, the switching still going on upon that track. While so at work, other cars were run against the coal car with such force as to throw deceased upon the ground, and he was run over and killed. A trial resulted in a verdict and judgment for the plaintiff, for $5000. The railroad company appeals. The opinion of the court sufficiently presents the grounds of the alleged error. Messrs. GOODWIN & WILLIAMS, and Mr. B. C. Cook, for the appellants. Mr. WILLIAM BARGE, for the appellee. Opinion of the Court. Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court: Several objections are made on this record, but we shall address ourselves to those bearing upon the instructions. Preliminary to this, an objection raised on the rejection of the testimony of Woolley, a witness called for appellants, will be disposed of. Woolley, the rejected witness, was an employee of appellants in a capacity connecting him with the making up of trains for the road, and when offered as a witness, was rejected, on the ground of interest, being liable over to appellants. The rule of the common law in relation to the interest of a witness is familiar to all, and operated in full force in this State until the enactment of the law of 1867. However much the existence of the rule was regretted by the most learned and distinguished courts of this country and of England, it was inexorably enforced, and witnesses of the highest character in the community were excluded from the stand, if it appeared they had an interest in the event of the suit. To make such competent, resort was had to a written release executed with all the forms of law. Our legislature, in a spirit of enlightened policy, abolished this rule, by declaring that no person should be disqualified as a witness in any civil action, suit or proceeding, or by reason of his or her interest in the event thereof, as a party or otherwise, or by reason of his or her conviction of any crime. Sess. laws, p. 183. By the common law, and under the authority of the case of the Galena & Chicago Union Railroad Co. v. Welch, 24 Ill. 33, this witness was incompetent, but this act of 1867 removed his disability, and he should not have been rejected, or the appellants compelled to execute to him a release of whatever claim they may have had on him for prospective damages, and did the cause rest upon this point, we should be inclined to hold the error sufficient to reverse the judgment. But the appellants were not deprived of the testimony of this witness. He was sworn and examined, and testified fully in the cause. Opinion of the Court. Now, as to the instructions. Those given for appellee are for the most part confined to the conduct of the deceased whilst engaged in unloading the coal cars, without any reference to the question of going upon that car at the time and under the circumstances he did enter upon it. The central question is, did the deceased use proper care and caution in entering upon this car under the circumstances then existing? This is an important question in the case, and to which the attention of the jury was not called. However discreet and careful the conduct of deceased may have been when on the car, the question remains, was he justified in being there at that time, and under the circumstances? On another trial, the attention of the jury will be called to this central fact. Exception is taken to the tenth instruction given for appellee. It is as follows: "The jury are instructed that in estimating the pecuniary injury, if they believe from the evidence that the widow and minor children of said Christopher Weldon, deceased, have sustained any injury for which the defendant is liable, they have a right to take into consideration the support of the said widow and minor children of the deceased, and the instruction, and physical, moral and intellectual training, of the minor children of the deceased, and also the ages of the said minor children, and the pecuniary condition of the said minor children and widow of the deceased, in determining the amount of damages in this case, if they believe from the evidence that said Weldon left a widow and minor children." To the principle contained in this instruction, we perceive no objection. The matter of it has been elaborately discussed in the courts of several of the States, but in none, perhaps, with more ability than in the court of appeals of the State of New York, in the case of Tilly, Admr. v. The Hudson River R. R. Co. 29 N. Y. 252. That case was more than once |