The Chicago v. Hale

• Decision Date: 30 June 1878
• Citation: The Chicago v. Hale, 2 Ill.App. 150, 2 Bradw. 150 (Ill. App. 1878)
• Parties: THE CHICAGO, BURLINGTON AND QUINCY R. R. CO.v.ALFRED HALE.
• Court: Appellate Court of Illinois

2 Ill.App. 150

2 Bradw. 150

THE CHICAGO, BURLINGTON AND QUINCY R. R. CO.

v.ALFRED HALE.

Appellate Court of Illinois, Second District.

June Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Warren county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Mr. W. C. NORCROSS, for appellant; that the damage should be limited to actual compensation--the difference in value of the property before and after the injury--and that the court erred in refusing defendant's instruction upon that question, cited Ill. Cent. R. R. Co. v. Finnigan et al. 21 Ill. 648; T. P. & W. R. R. Co. v. Arnold, 43 Ill. 418; Faulkner v. South Pacific R. R. Co. 51 Mo. 311; Poucher v. N. Y. Cent. R. R. Co. 49 N. Y. 263; Mulligan v. Ill. Cent. R. R. Co. 2 Am. R'y R. 322; Hadley v. Baxendale, 26 Eng. L. & Eq. Rep. 402; G. W. R'y Co. v. Redmayne, C. & P. 329; Farnham v. C. & C. R. R. Co. 55 Pa. St. 53; Clark v. R. & C. R. R. Co. 14 N. Y. 570; Hamilton v. McPherson, 28 N. Y. 76; Ottawa Gas Light & Coke Co. v. Graham, 28 Ill. 73; Robinson v. Varnell, 16 Tex. 382; Sedgwick on Damages, 201; 2 Parsons on Con. 241; Kennedy v. North Mo. R. R. Co. 36 Mo. 351.

Instructions not resting on evidence in the case are erroneous: Hooley v. Brooks, 20 Ill. 116; Paulin v. Howser, 63 Ill. 312; Gibson v. Webster, 44 Ill. 483.

Prospective or speculative damages should not be allowed: Wilson v. Lancashire, etc. R. R. Co. 30 L. J. C. P. 232; 2 Greenleaf on Ev. 240.

The court erred in modifying defendant's sixth instruction. As originally asked it was correct: Davis v. M. S. & N. Ind. R. R. Co. 22 Ill. 278; Warren v. President, etc. 15 Ill. 236; C. R. I. & P. R. R. Co. v. Fahey, 52 Ill. 81; Sutphen v. Cushman, 35 Ill. 186.

Testimony as to probable profits should not have been allowed: I. B. & W. R. R. Co. v. Barney, 71 Ill. 399; Sedgwick on Damages, 82; Sherman & Redfield on Negligence, 599.

The damages cannot exceed the limit named in the special contract: Pierce on Railroad Law, 420; I. C. R. R. Co. v. Owens, 53 Ill. 391; Lang v. N. Y. Cent. R. R. Co. 50 N. Y. 76; 2 Kents' Com. 638.

Mr. J. W. DAVIDSON, for appellee; that unless restricted in their liability by special contract, the company were insurers of the property, and by accepting the property its liability became fixed, cited 1 Parsons on Con. 653; C. & A. R. R. Co. v. Koener, 77 Ill. 11; C. & A. R. R. Co. v. Shea, 76 Ill. 47; Mer. Dispatch Co. v. Moss, et al. 76 Ill. 520; Mer. Dispatch Co. v. Smith, 76 Ill. 542.

Probable profits may be considered in estimating the damages if the plaintiff prove that such profits were reasonably certain: Sherman & Redfield on Neg. § 594; Frazer v. Smith, 60 Ill. 145; Ill. Cent. R. R. Co. v. Cobb, et al. 64 Ill. 128.

The jury are to judge of the weight to be given to the testimony of witnesses, and two juries having passed upon this case with the same result, their verdict ought not to be disturbed: Wallace v. Wren, 32 Ill. 146; White v. Clayes, 32 Ill. 325; Umlauf v. Bassett, 38 Ill. 96; C. & R. I. R. R. Co. v. Coal & Iron Co. 36 Ill. 60; Tolman v. Race, 36 Ill. 472; C. & R. I. R. R. Co. v. Hutchins, 34 Ill. 108; Schultz v. Lepage, 21 Ill. 160; Smith v. Schultz, 1 Scam. 490; Allen v. Smith, 3 Scam. 97; Ellis v. Locke, 2 Gilm. 459; Evans v. Fisher, 5 Gilm. 572; Dawson v. Robbins, 5 Gilm. 72; Mann v. Russell, 11 Ill. 586; Weldon v. Francis, 12 Ill. 460; Morgan v. Ryerson, 20 Ill. 348; Martin v. Ehrenfels, 24 Ill. 189; Pullian v. Ogle, 27 Ill. 189; Deferest v. Oder, 42 Ill. 500.

If the verdict is warranted by the evidence, it should not be disturbed: Lowry v. Orr, 1 Gilm. 70; Brown v. Crum, 24 Ill. 78; Jenkins v. Brush, 3 Gilm. 18; Sullivan v. Dollins, 13 Ill. 85; Raney v. Monegan, 3 Gilm. 85; Green v. Lewis, 13 Ill. 642; Ill. Cent. R. R. Co. v. Hays, 19 Ill. 166; O. & M. R. R. Co. v. Brown, 25 Ill. 124; Keely v. O'Brien, 66 Ill. 358; Dunning v. Fitch, 66 Ill. 51; O'Brien v. Palmer, 49 Ill. 72; Bradley v. Griselman, 22 Ill. 494; C. B. & Q. R. R. Co. v. Stumps, 69 Ill. 409.

Where the testimony is conflicting, it is the province of the jury to weigh it, and their decision will not be disturbed unless there is manifest injustice: Summers v. Stark, 76 Ill. 208; Edgmon v. Ashelby, 76 Ill. 161; Clifford v. Lehring, 69 Ill. 401; Bishop v. Busse, 69 Ill. 403; Jackquin v. Davidson, 49 Ill. 82; Baker v. Robinson, 49 Ill. 299; Hartly v. Hartly, 49 Ill. 302; Labor v. Scanlon, 49 Ill. 152; McCarthy v. Mooney, 49 Ill. 247; Keightlinger v. Egan, 75 Ill. 141; Plummer v. Rigdon, 68 Ill. 222; Miller v. Balthasser, 68 Ill. 302; Gilbert v. Bone, 79 Ill. 341; Holcomb v. The People, 79 Ill. 409.

Instructions should be based on the evidence: Reno v. Wilson, 49 Ill. 95; Hartford v. Obrecht, 49 Ill. 146; Baker v. Robinson, 49 Ill. 299; Ill. Cent. R. R. Co. v. Burton, 69 Ill. 174; Gilchrist v. Gilchrist, 76 Ill. 281; Olsen v. Upshal 69 Ill. 273; Baker v. M. S. & N. Ind. R. R. Co. 42 Ill. 73.

LELAND, J.

The appellee sued appellant in an action on the case for injury sustained by an ass which was shipped at Burlington, Iowa, to Monmouth, Ill., April 23d, 1874. The first count was for the injury and consequent total loss of the ass. The second was like the first, with an additional allegation that the animal was bought and owned for the sole and only purpose and use, and to be kept and stood by plaintiff for service as a foal-getter, and that the use for 1874, as such foal-getter, was reasonably worth $400, etc. After this case had been to the Supreme Court (83 Ill. 360), the second count of the declaration was amended by adding a statement that the railroad company had notice, when the animal was shipped, that appellee intended to use him as a foal-getter, and the further statement that appellee had contracted for a large number, to wit: twenty-five mares to be bred to said jack for the year 1874. There was a verdict of $300 for appellee. It was contended by appellant that the animal was shipped under a written contract by the terms of which the amount of the damages, if any, was limited to one hundred dollars, and that appellant was not to be liable for injury or damages which the ass might do to himself. Appellee, who was not acquainted in Burlington where he bought the animal for $200, left it to a colored person, one Dr. Tyler, the vendor, to attend to the shipping of the ass, and went home. The doctor did enter into a written contract to the effect as stated, and which he signed thus: “his mark.” “Dr.+Tyler.” The contract was one of the long, printed live stock contracts used by appellant, of which each of the contracting parties had a copy. The doctor says he gave his copy to the appellee, and the latter says he did not get it, and never saw it.

It becomes necessary, perhaps, to state more fully than usual the evidence on the subject of the physical disability of the jackass.

Appellee, who was also a colored person, testifies that the ass was rendered so he could not walk; whether his ankle was broke clear loose or not, it was broke so that his leg dangled every way; that he led him down town on three legs; he could not put the fourth to the ground; that he did not, any time that day, put the fourth to the ground; that when he held his foot up, the ankle just swung loose all about; can't say whether it was broken or pulled out; that his hip was perished away, etc.

Parry says that on the next day after his arrival, he was on three legs; could bear no weight on his left hind leg; that the injury (leg) at first did seem like it might come kinder stiff, and he could use it to be of some service, but it appeared like it was a great while getting so. The last time he saw him, the leg appeared to have shrunk up, and the hip was swaning away; that he cannot recollect how limber the joint was at the bottom, but the hip was all swaning away, and that he considered that he was gone up; that he was permanently disabled the last time he saw him; that he stood on three legs at the time of the trial, in May, 1875.

Todd says he was present when Hale took the jack from the depot; saw jack standing on three legs; thought the animal in much pain.

Arms, a railroad employee, who wrote the words “received in bad order, very lame,” says, however, “he did so because Hale refused to receive him. Did not notice there was anything the matter with him till after he was led into the depot building. He went out of the car the same as any other horse would, on all four feet.”

Richey says he was lame in hind leg; don't think he was fit for mares; did not make a careful examination when he saw him lame. The foregoing is all there is for appellee. Appellee's counsel alludes to the evidence of Dr. Van Hoorbeke, a veterinary surgeon (who was taken by appellee to examine the animal just before the trial in May, 1875, but who was introduced by appellants as a witness on the last trial), as stating that the hip of the Jack was then perished. We have looked at the evidence of this witness carefully, and find it very strong for appellants. It is to the effect that he has experience as to such matters; that he made a very careful examination of the animal, at appellee's request, and especially felt of his legs; that the animal was led around, that he walked perfectly well, and that there were then (May, 1875) no indications that he had ever received any injury of the kind claimed. He expresses himself strongly and emphatically that there was no perishing of the hip; no indication of any injury whatever.

Peter (alias Stonewall) Jackson says he saw the jack at the depot, discovered that he was some lame; that Hale led the jack by the halter. He walked a little lame when we led him away from the freight house; did not go on three feet, went away on all four of them. Oh! no, sir! his leg was not broken or dangling; noticed the hind legs of this jack, and felt them; had long pastern joints; didn't think the injury was of any consequence.

Fargart says he saw the jack about first of June, 1874, in barn-yard, at Hale's residence. H...