Chicago & A.R. Co. v. Davis

• Decision Date: 25 November 1895
• Citation: 42 N.E. 382,159 Ill. 53
• Court: Illinois Supreme Court
• Parties: CHICAGO & A. R. CO. v. DAVIS.

159 Ill. 53

42 N.E. 382

CHICAGO & A. R. CO.

v.DAVIS.¹

Supreme Court of Illinois.

Nov. 25, 1895.

Appeal from appellate court, First district.

Action on the case by William H. Davis against the Chicago & Alton Railroad Company. Plaintiff obtained judgment, which was affirmed by the appellate court. 54 Ill. App. 130. Defendant appeals. Affirmed.

Lee & Hay, for appellant.

Eastman & Schumacher, for appellee.

CARTER, J.

This was an action on the case brought by appellee against appellant to recover damages for the negligence of the latter in transporting a carload of green hams from Kansas City to Cincinnati, whereby they were injured. The amount claimed in the declaration was $1,500. The cause was tried by the court without a jury, and judgment was rendered for the plaintiff for $1,051.46. The defendant took its appeal to the appellate court, where it was held that as to certain items, amounting to $272.78, the judgment was erroneous,-the damages, as assessed, being to that amount in excess of the damages actually sustained by the plaintiff; and, the plaintiff having remitted such excess, the judgment was affirmed as to the balance, of $778.68. 54 Ill. App. 130. The defendant then took this appeal from said judgment of affirmance.

Appellee has entered his motion here to dismiss the appeal on the ground that the amount involved is less than $1,000, and that this court is without jurisdiction to entertain the appeal. The motion having been reserved to the final hearing, it will now be first disposed of. The question arising on this motion was directly involved in Gilmore v. Courtney (wherein an opinion was filed at the October term, 1895) 41 N. E. 1023. We there held that, the amount involved on the appeal to the appellate court being in excess of $1,000, an appeal lay to this court, notwithstanding the remittitur in the appellate court, whereby the judgment was reduced below that amount. This motion must be controlled by that decision, and it is therefore overruled.

The principal act of negligence complained of, and which on this appeal must be taken as proved, was that the refrigerator car furnished by appellant in which to transport the hams was defective, by reason of having a strip torn from the inside door, whereby warm air from the outside was admitted, melting the ice and heating the hams, so that they were in part spolied en route. The order for the hams was sent by appellee from Cincinnati to Dunham, Norris & Co., brokers at Kansas City, and called for a carload of green hams,-of the Armour Packing Company's hams. Dunham, Norris & Co. placed the order with the Armour Packing Company. Appellant furnished the refrigerator car, and undertook to transport and deliver the hams. The evidence showed that, by the course of business between the packing company and appellant, appellant inspecteditsown cars in all respects, except as to their sufficiency as refrigerator cars. As to the latter features, the inspection was by the Armour Packing Company. The defect in the car was not apparent from the outside, but would readily be discovered on inspection. It was the duty of the carrier to provide a good and sufficient vehicle in which to carry the hams (Railway Co. v. Dorman, 72 Ill. 504;Railway Co. v. Strain, 81 Ill. 504; 3 Am. & Eng. Enc. Law, 16a), and this it undertook to do. It could employ such agents to inspect its cars as it saw fit, and if, by special contract, or by its course of business between itself and the packing company it relied on the latter to inspect the refrigerating qualities of its cars, that was a matter between itself and the packing company, and did not concern appellee. The mere fact that appellee purchased the hams from the packing company did not relieve the appellant from its duty to provide a safe and suitable car in which to transport the hams. The rule that in making the contract for...