Chicago W.D. Ry. Co. v. Ingraham

• Decision Date: 21 January 1890
• Citation: 131 Ill. 659,23 N.E. 350
• Parties: CHICAGO W. D. RY. CO. v. INGRAHAM.
• Court: Illinois Supreme Court

131 Ill. 659

23 N.E. 350

CHICAGO W. D. RY. CO.

v.INGRAHAM.¹

Supreme Court of Illinois.

Jan. 21, 1890.

Appeal from appellate court, first district.

Action by Sereno W. Ingraham against the Chicago West Division Railway Company. Defendant appeals. The ninth instruction asked by defendant was as follows: ‘The jury are instructed, as a matter of law, that a company legally operating a street railway is entitled to the track on meeting foot-passengers or other vehicles; and, inasmuch as the street-cars can only go on a particular line, and when one or the other is compelled to give the right of the road, that foot-passengers, or those traveling by ordinary methods, must yield it to the street-car.’

W. B. Keep, Edmund Furthmann and H. H. Martin, for appellant.

Hynes & Dunne, for appellee.

SHOPE, C. J.

This was an action on the case by appellee, to recover damages to his person and property claimed to have been sustained through the negligence of appellant's servants, whereby a collision occurred between a car on appellant's railway and the buggy in which appellee was riding. The declaration contained a single count. It alleged, in apt form, that appellee was riding on West Twelfth street, in Chicago, in a buggy drawn by a single horse; and, while in the exercise of due care and caution on his part, the servants of defendant, appellant, so carelessly and negligently drove and managed the horses by which a street-car upon defendant's tracks was drawn that the car struck the buggy of appellee with great force, whereby he was thrown to and upon the ground, and severely and permanently injured, his buggy and harness broken, injured, and damaged, and his horse hurt, damaged, and permanently deteriorated in value. The count, by apt averments, sets out the personal injury to appellee, his expense in being cured, and loss of time, and also the damage to his horse, buggy, and harness, and seeks recovery of damage to his person and property. To this declaration the appellant filed the general issue. A trial resulted in a verdict and judgment thereon for appellee of $1,000. On appeal to the appellate court, the judgment was affirmed; and the railway company prosecutes this further appeal. All controverted questions of fact necessary to sustain the judgment are necessarily determined against appellant by the judgment of the appellate court.

It is insisted that the trial court erred both in giving instructions and in the admission of evidence. The criticism of the second instruction given on behalf of appellee is that the jury were thereby instructed that, if they found for the plaintiff, then, in assessing his damages, they should take into consideration any damage shown to have resulted to the person of the plaintiff, and also to his personal property; the point made being that the damages to the person of the plaintiff, and the damages to his horse, buggy, and harness, were separate and distinct injuries, and hence could not be recovered for under a single count declaring for both. We are referred to Brunsden v Humphrey, L. R. 14 Q. B. Div. 141, as sustaining that view. The case, when properly considered, if it be accepted as a true exposition of the law, is not controlling. In that case the plaintiff recovered judgment for an injury to his cab caused by a collision with defendant's van, through the negligence of defendant's servants, and subsequently sued the same defendant for personal injury to himself alleged to have resulted from the same collision; and it was held that the former suit was not a bar to the second recovery. It is conceded, as indeed it must be, that recovery for damages to the person and to the property of appellee might be had in the same action, if declared for in separate counts of the declaration. The general rule of the common law is that where several causes of action of the same nature, that is, which require at the common law the same judgment, and are recoverable in the same form of action, exist between the same parties, in the same right, they may all be joined, by several counts, in one declaration. Gould, Pl. c. 4, §§ 79, 85, 103; Chit. Pl. 228. And this would be so notwithstanding they might be so far several and distinct rights of action that a judgment for one would be no bar to a recovery for the other. And, if it be conceded that the injury to the person and to the property of appellee so far constituted distinct causes of action that separate suits might be maintained therefor, we are unable to perceive any reason, where the damages result in the same manner, and from the same negligent or willful act of the defendant, and are coincident in time, and the cause of action accrues to the plaintiff in the same right, and against the defendant in the same character or capacity, they may not be joined in the same count of the declaration. Godfrey v. Buckmaster, 1 Scam. 447. At most it would be violative only of the rule in respect of duplicity in pleading, but which, in the state of pleadings here, it will be unnecessary to determine. The declaration counts upon the injury to both the person and property of the plaintiff. The damages alleged to have been sustained to each are alleged with equal particularity; and it can no more be said that the suit is to recover damages resulting from his personal injuries than that it is for the recovery of damages to his horse, buggy, and harness. A substantive right of recovery is by the declaration based upon the injury to each, the injury to his property no less than to his person. Duplicity in a declaration consists in joining in one and the same count different grounds of action, of different natures, or of the same nature, to enforce only a single right of recovery. Gould, Pl. c. 4, § 99. It must be manifest that the declaration here considered does not fall within this definition of duplicity given by Mr. Gould. But, be this as it...