Chicago & Northwestern Railway Co. v. McCahill

Citations

• 56 Ill. 28

Syllabus

<p>1. Negligence in bailboads—fire occasioned, by sparks from cm engine — bwrden of proof. In an action against a railroad company to recover for property destroyed by fire emitted from a locomotive of the company, through the alleged negligence of their servants or of the company, under the act of 1869 on that subject, the mere proof of the fact that the fire was caused by sparks from the engine constitutes prima facie evidence of negligence on the part of the company, and the burden of proof rests upon, them to rebut the prima facie, case of negligence so made. ^</p> <p>2. Same — as to proof of negligence. In such a case, proof of the fact that the engine threw out an unusual quantity of fire was held sufficient to overcome any direct evidence given that it was in good order, or, if in good order, that it was skillfully managed by the engineer.</p> <p>3. Evidence—refreshing witnesses' recollection. In an action against a railroad company to recover for loss of property destroyed by fire, resulting from negligence of the company, it was held proper to permit the plaintiff, in giving his testimony, to refresh his recollection from a memorandum he had made of the articles destroyed by the fire.</p> <p>4. Same — res gestee. In such case, it is not improper to allow witnesses to testify to the loss of articles not included in the declaration, as being part of the res gestee; though the court would doubtless instruct the jury if requested to do so, not to allow for any articles not embraced in the declaration.</p> <p>5. Rules oe Pbactice—in what mode they may be questioned. In order to test the validity of a rule of practice in the court below, which provided that instructions would not be considered by the court unless presented before the commencement of the final argument to the jury, the party objecting to the rule should present his instructions, in writing, to the court, after the time limited by the rule, and if the court should then refuse to consider them, they