The injury, to recover for which suit was brought by appellee against appellant, occurred in the State of Wisconsin.
Appellee was a locomotive fireman in the employ of appellant, and at the time of the accident ivas acting in that capacity on a locomotive drawing, a special, or “ wild ” freight train northward from Chicago, and had reached the station of Shopiere, in Wisconsin. The station agent at that point left a switch open, and the train, which was not intended to stop at that place, was turned onto the switch and wrecked, and the appellee most seriously injured.
It was conceded at the trial, and is so now, that the accident, happening in Wisconsin, the laws of that State then in force must determine appellee’s right to recover; and that whether he could recover if the accident was caused by the negligence of the other trainmen, or the station agent, would depend upon what the law of Wisconsin was, at the date of the accident, concerning the right of a servant to recover from an employer for injuries received through the negligence of a felloxv-servant, and. also who, by that law, would fall within the definition of fellow-servants.
On the trial of the cause both parties introduced in evidence the oral testimony of qualified experts and the reported decisions of the Supreme Court of Wisconsin, for ■ the purpose of proving what the law of that State was, as applied to the facts and circumstances of the case, at the time of the injury. In the course of the examination of the expert witnesses, it was made to appear, either in chief or on cross-examination, that each one of said witnesses "based his testimony of what the law of "Wisconsin was, upon his construction of what the Supreme Court of that State had decided in one or the other of the several cases contained in the reported decisions of that court as published and read in evidence, and such evidence was permitted to go to the jury, for them to determine therefrom in connection with the decisions themselves, as to what the law of Wisconsin was as applied to the facts in the case on trial. Unquestionably, as said in McDeed v. McDeed, 67 Ill. 545, “ The common law of a foreign State may be proved by parol evidence. The usual course is to make such proof by the testimony of competent witnesses instructed in the law, under oath. As a general rule, the decisions of courts of justice are the evidence of what is common law.”
But when it is shown by the witnesses themselves that the knowledge they are testifying to is derived from the identical reported decisions in evidence in the case, their construction of what the law is as announced by those decisions, becomes immaterial. The decisions themselves are the best evidence of what they contain.
As said by Chief Justice Marshall in Church v. Hubbart, 2 Cranch, 237: “ The principle that the best testimony shall be required which the nature of the" thing admits of, or, in other words, that no testimony shall be received which presupposes better testimony attainable by the party who offers it, applies to foreign laws as it does to all other facts.”
Although we may readily imagine cases of rare occurrence where, in aid of the court,' extrinsic evidence by a properly qualified expert might be advantageous, or possibly required, we see no occasion in this instance to approve or tolerate such assistance.
In the notable case of Baron de Bode v. Regina, 10 Jur. 217 (8 Adolph. & Ellis N. S., and 55 Eng. Com. Law, 208, also cited in note 2, Sec. 487, Greenleaf on Evid.), decided by Lord Denman, where the witness, a learned French advocate, was permitted to testify to the contents of a general decree of the French Assembly in 1789, without attempt having been previously made to obtain a copy of the law, Lord Denman justified the evidence^ even though he said he apprehended the witness would not set forth generally his recollection of the contents of the instrument but his opinion as to the effect of the law. Even though such might be the ruling of the courts to-day under a like condition, we apprehend that where the better evidence—the written law itself—was before the court, parol evidence either as to -its contents or its construction would be held inadmissible, except, possibly, in the instance of the laws of a country foreign in fact, as well as in law, to our own, and where, because of the dissimilarity of institutions and principles of government, our own judges might be presumed not to possess the requisite knowledge to construe such laws unaided by sworn interpretation of them as applied in the foreign jurisdiction, and even in such an instance, if the parol evidence was contradictory, our courts would look at the foreign law itself and give its own judgment on the point. Trimbey v. Vignier, 1 Bingham’s New Cases (27 Eng. Com. Law), 158.
The decisions of the Supreme Court of Wisconsin are printed in the English language, and there is no such dissimilarity between the institutions and laws of Wisconsin and those of Illinois, as to render it especially difficult for a judge of either State to place the proper construction upon the decisions of the other.
The expert witnesses that were called by the appellee differed essentially in their testimony from the one called by appellant, as to what had been decided by the Supreme Court of Wisconsin to be the law at the time of the accident, and as to whether or not the decision in the Toner case (69 Wis. 188) had been in effect overruled.
Assuming that, with the decisions themselves already in evidence, such testimony was admissible and material, it clearly then became the privilege and duty of the circuit judge under the authority of Trimbey v. Vignier, supra, to examine the decisions in controversy and judge for himself, and quite as clearly his duty to instruct the jury accordingly, and relieve them, by his own interpretation of the law, from the confusion such conflicting evidence must have created upon their untrained minds. As said in Hooper v. Moore, 40 N. C. 130: “ Can it be questioned that the court is more competent to ascertain and understand such (foreign) laws than the jury, or that the jury stand as much in need of instruction in respect thereto as in respect to our own laws ? ”
We can see no reason for applying a different rule, where the best evidence of the law of Wisconsin was in evidence in the form of authoritatively published decisions of its Supreme Court, in a case on trial before a court in this State, from that which would have been applied by a trial court in that State. There the trial judge, taking judicial notice of the law of that State as decided by its Supreme Court, would have instructed the jury as to that law, and so, on a trial in this State, the trial judge, taking notice of that same law by virtue of its having been proven in the manner provided by our statutes (1 Starr & C. Ill. Stats., Chap. 51, Sec. 12), should have instructed the jury as to what the particular law was.
Entertaining these views, we are of opinion that the giving of plaintiff’s second instruction, and modifying the defendant’s tenth and eleventh instructions, thereby submitting to the jury the question of what the law of Wisconsin was at the time of the accident, as to whether plaintiff and the station agent were or were not fellow-servants, and whether, if fellow-servants, the defendant was or was not liable, was serious error, warranting a reversal of the cause.
We are aware that the authorities are not harmonious, but we hold the true rule, supported by the great weight of authority, to be, that where the authoritatively published decisions of another State are in evidence in the case, the question of what those decisions decide, is one of law for the court, and not one of fact for the jury. 1 Thompson on Trials, Sec. 1054, and cases cited; Story on Conflict of Laws, Sec. 638, and cases cited; 1 Greenleaf on Evidence, Sec. 486, and cases cited, and C. & N. W. Ry. Co. v. Johnson, 27 Ill. App. 351.
A further matter of bewilderment to the jury, and one that should have been kept from them, or controlled by instruction, was the admission in evidence by the court, over the objection of the appellant, of the dissenting opinion in the Toner case, supra.
Our statute making the reports of decisions of the courts of other States competent to be “ read as evidence of the decisions of such courts,” does not contemplate the reading in evidence of anything but the decisions. A dissenting opinion is not a decision, and serves no valuable office in determining what the decision is. It was improperly admitted in evidence.
Another error assigned is the exclusion by the court of the decision of the Supreme Court of Wisconsin in the case of Ewald v. C. & N. W. R. R. Co., 70 Wis. 423. The court seems to have excluded the decision referred to because the opinion was not handed down until in the January term (January 10), 1888, and the injury to appellee occurred on May 25, 1887. But the accident in the Ewald case, for which the suit was brought, occurred on February 5,1886. The decision, therefore, was as to what the law was on February 5, 1886, which was before the accident to appellee, and it should have been admitted in evidence.
It is not the province of this court at this time, to decide what the law of Wisconsin was at the date of the injury to appellee. It will remain for the Circuit Court first to decide upon that question, and properly instruct the next jury before whom the case may come concerning it. For us to construe the Wisconsin decisions in advance of a construction of them by the Circuit Court, would be an exercise of original and not appellate jurisdiction.
The error especially urged in the refusal of the court to give appellant’s second instruction, we think is not well founded. Aside from the question of law involved, upon which, at this time, for reasons stated, we express no opinion, it assumes as a fact what the duty of the station agent was, which was a question exclusively for the jury upon the evidence.
Eo error is pointed, out in the refusal of any of appellant’s other instructions, and we will not discuss them.
For the reasons stated the cause will be reversed and remanded.
Smersed and remanded.