Pennsylvania Co. v. Sloan

• Decision Date: 09 May 1888
• Parties: PENNSYLVANIA CO. v. SLOAN.
• Court: Illinois Supreme Court

125 Ill. 72

17 N.E. 37

PENNSYLVANIA CO.

v.SLOAN.

Supreme Court of Illinois.

May 9, 1888.

Appeal from appellate court, First district.

This was an action brought by George M. Sloan against the Pennsylvania Company for injuries sustained through the alleged negligence of defendant's employes. There was judgment for plaintiff in the court of first instance, which was affirmed in the appellate court, and defendant now appeals to the supreme court.George Willard

, for appellant.

John Lyle King, for appellee.

MAGRUDER, J.

This suit was commenced in the circuit court of Cook county on July 3, 1874, by the appellee, to recover damages for personal injuries received July 5, 1872. On the latter day, appellee was riding in a buggy westward on Eighteenth street in the city of Chicago, and came to Stewart avenue, along which the railroad tracks of the appellant, 10 or 12 in number, run from north to south, and from north-east to south-west. He was stopped by a train passing on one of the tracks furthest to the west, and waited for some time for an opportunity to get across. A number of stationary cars, standing on one of the easterly tracks south of Eighteenth street, obstructed his view of the tracks between the stationary cars on the east and the moving train on the west. When the latter train had passed, he was signaled to come on, and motioned to hurry up, by the flag-man, whose duty it was to give signals of the movements of the cars and engines. Before he could cross the net-work of tracks, a train backing up from the south, and theretofore hidden by the stationary cars, stopped his further progress, by moving directly in front, and so near as to touch the horse's head. The horse became frightened, and reared and plunged, and backed the buggy towards the east, where it was in danger of colliding with a locomotive advancing from the north in appellee's rear. In this state of affairs, the whistle of the locomotive was suddenly blown, and increased the fright of the horse. In peril of his life from the train in front of him, the locomotive in the rear of him, and the plungingof the frightened horse, appellee jumped from the buggy, and received the injuries complained of.

The declaration charges that the servants of appellant were guilty of negligence in signaling appellee to advance across the tracks when an approaching train, that he could not see, made it unsafe to do so, and in driving the locomotive along the track at that time, needlessly and improperly blowing its whistle. The suit, as originally begun by summons issued on July 3, 1874, was against the Pittsburgh, Fort Wayne & Chicago Railroad Company. The alias summons, dated July 23, 1874, was served July 31, 1874, on R. C. Meldrum as agent. The original declaration was filed August 10, 1874, to which the general issue was pleaded. The first trial was had in April, 1876, and resulted in a verdict of $3,000. A new trial was granted. The second trial took place in November, 1876, and resulted in a verdict of $4,000. A new trial was again granted. The third trial began on March 26, 1877, but on March 27, 1877, leave was given to plaintiff to amend by substituting the Pennsylvania Company in place of the Pittsburgh, Fort Wayne & Chicago Railroad Company. A juror was withdrawn, and the cause continued. The summons issued and dated on March 27, 1877, was served on March 28, 1877, on the Pennsylvania Company, by reading to R. C. Meldrum, agent. March 27, 1877, an amended declaration was filed, consisting of five counts, to which the Pennsylvania Company filed two pleas: First, general issue; second, statute of limitations,-the latter plea being that action did not accrue within two years next before suit was brought. To the second plea four replications were filed, each of which was demurred to, and demurrer sustained as to second and third, and overruled as to first and fourth. Issue was joined on the first replication, and two rejoinders were filed to the fourth. The rejoinders were demurred to, but the demurrer was overruled, and plaintiff elected to stand by it. June 4, 1877, an order was entered substituting the Pennsylvania Company for the Pittsburgh, Fort Wayne & Chicago Railroad Company. In September, 1877, a third trial was had, resulting in verdict and judgment for $3,000. An appeal was then taken to the appellate court, where the judgment was reversed, and the cause remanded. The mandate was filed in October, 1880. Afterwards, in January, 1885, leave was granted to plaintiff to withdraw all replications then on file, and to file new replications to the second plea, upon the first of which issue was joined, and to the second and third of which rejoinders were filed and demurred to. A fourth trial was begun in September, 1885, but plaintiff withdrew a juror, and the cause was continued. The fourth trial was, however, again begun, and finished in November, 1886, and resulted in verdict and judgment for $5,000. The latter judgment has been affirmed by the appellate court, whence it comes before us by appeal.

The first of the new replications to the second plea averred that the defendant, the Pennsylvania Company, was a foreign corporation, possessed of and operating solely and exclusively the Pittsburgh, Fort Wayne & Chicago Railroad, extending from Chicago to Pittsburgh and all the cars, etc., and the servants, etc., of the defendant, and the causes of action mentioned in the declaration, were solely caused by the negligence of defendant's servants etc.; that Meldrum was local and general agent of defendant in Chicago, and on July 3, 1874, plaintiff sued out summons, and impleaded defendant in the name of the Pittsburgh, Fort Wayne & Chicago Railroad Company, (the said Pennsylvania Company being known and reputed as the Pittsburgh, Fort Wayne & Chicago Railroad Company;) that the alias summons against defendant in the reputed name of Pittsburgh, Fort Wayne & Chicago Railroad Company was served July 31, 1874, on Meldrum, as agent of Pennsylvania Company; that the Pennsylvania Company appeared by its solicitors, and, without pleading in abatement, pleaded to the merits, etc. The replication then sets forth the trials in April and November, 1876, the amendment and substitution of March, 1877, the issuance of summons in March, 1877, against the Pennsylvania Company, and its service on Meldrum, as agent of that company, etc., and concludes as follows: ‘And so plaintiff says this suit is the same suit commenced against defendant in name of P., Ft. W. & C. Railroad Co., and that said causes of action accrued within two years before commencement of suit.’ If the suit had been begun against the Pennsylvania Company by that name, it was undoubtedly commenced in time to escape the bar of the statute. The theory of the appellant is that the action, having been begun against the Pittsburgh, Fort Wayne & Chicago Railroad Company was not begun against the Pennsylvania Company; and that the bar of the statute was complete as to the latter company, because it was not made a party until 1877, more than two years after the cause of action accrued. To answer this position, appellee contends that the Pennsylvania Company was the company sued in the first place, but that it was merely sued by the wrong name, to-wit, by the name of the Pittsburgh, Fort Wayne & Chicago Railroad Company. The law undoubtedly is...