The Culbertson & Blair Packing v. City of Chicago

• Citation: 1884 WL 9994,111 Ill. 651
• Court: Supreme Court of Illinois
• Decision Date: 17 November 1884
• Parties: THE CULBERTSON & BLAIR PACKING AND PROVISION COMPANYv.CITY OF CHICAGO et al.

111 Ill. 651

1884 WL 9994 (Ill.)

THE CULBERTSON & BLAIR PACKING AND PROVISION COMPANY

v.CITY OF CHICAGO et al.

Supreme Court of Illinois.

Filed at Ottawa Nov. 17, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Messrs. MONROE & TEWKESBURY, for the appellant:

The ordinance of the common council, set out in the opinion, does not bind the city to save the defendant railroad company from all damages that might result to the property of the plaintiff in consequence of the erection of the viaduct, and the court below erred in instructing the jury that it did. The instruction of the court as to this ordinance, if correct, was calculated to mislead the jury, and did, in fact, mislead them, and should not have been given. Webber v. Brown, 38 Ill. 87; Reader v. Purdy, 41 Id. 279; Nichols v. Mercer, 44 Id. 250; Ten Eyck v. Harris, 47 Id. 268.

If an instruction is objectionable, and the natural effect would be to mislead the jury, when the facts are controverted, the verdict should be set aside. Adams v. Smith, 58 Ill. 417; Carter v. Carter, 62 Id. 439; Herrick v. Gary, 65 Id. 101; Frantz v. Rose, 89 Id. 590. Mr. F. S. WINSTON, and Mr. E. J. HARKNESS, for the appellees:

The entire effect of a structure,--not a portion,--should be considered, beneficial as well as injurious. Page v. Railway Co. 70 Ill. 324; Shawneetown v. Mason, 82 Id. 337; City of Elgin v. Eaton, 83 Id. 585; Railroad Co. v. Hall, 90 Id. 42.

By consent of parties the jury went upon the premises and acted from their own observation. This action practically made their verdict an award.

The view of the premises is not the only competent evidence, but is sufficient to sustain the verdict even were no other evidence produced. Railroad Co. v. Sawyer, 71 Ill. 361; Railroad Co. v. Barnum, 107 Id. 160; Green v. Chicago, 97 Id. 370.

That evidence of actual sales of property in the locality, or similarly situated or of similar character, constitutes the very best evidence in cases of this character upon the question of value and of damage, has been repeatedly held by the courts. Railroad Co. v. Haller, 82 Ill. 208; White v. Hermann, 51 Id. 243; Railway Co. v. Maroney, 95 Id. 179; Shattuck v. Railroad Co. 6 Allen, 115; Edmunds v. Boston, 108 Mass. 535; Railway Co. v. Railway Co. 3 Allen, 142.

As is said by the court in Railroad Co. v. Haller, supra, the Pennsylvania company did not, by paying $14,000 towards the erection of this viaduct, thereby render itself liable for the consequential damages resulting therefrom. Nevins v. City of Peoria, 41 Ill. 502; City of Quincy v. Jones, 76 Id. 231; Murphy v. Chicago, 29 Id. 280; City of Chicago v. Rumsey, 87 Id. 350.

The rule is well stated by Cooley, in his work on Torts, on page 140.

Mr. CHIEF JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was an action on the case, by appellant, against appellees, for damages sustained to property in consequence of the construction of a viaduct, in Eighteenth street, over the tracks of the Pittsburgh, Fort Wayne and Chicago Railway Company. Judgment was rendered in the trial court, in favor of appellant, against the city of Chicago alone, for $5000, and that judgment, having been affirmed on appeal to the Appellate Court for the First District, is brought before us, by the present appeal, for review.

The contest in the Appellate Court, whether the judgment is sustained by the evidence, having been determined against appellant, it, of course, remains only for us to inquire whether there is such error in the rulings occurring during the trial, in regard to the law, as will authorize a judgment of reversal.

It is contended the Superior Court erroneously allowed the witness Pierce to testify as to the price for which a certain lot or piece of property was sold, without testifying as to the value of that lot or of that here affected; and the witness Crawford to testify as to amounts paid by the Western Indiana Railroad Company for lots lying east of the Chicago river. It does not appear that this property had a regular market value, like a commercial article, and mere opinions of its value are shown, by the evidence preserved, to be as variant as the different tastes and fancies of the witnesses. From the very necessities of the case, actual sales of property in the vicinity, and near the time, are competent evidence, as far as they go. On cross-examination, all circumstances can be drawn out, showing that the given sale fails, and how much, of being a fair criterion of value. We think there was no error in the admission of this evidence. ( St. Louis, Vandalia and Terre Haute Railroad Co. v. Haller, 82 Ill. 208; White v. Hermann, 51 Id. 243; Chicago and Western Indiana Railroad Co. v. Maroney, 95 Id. 179.) It is much less likely that such evidence can have produced harm in cases like the present, where, as was here done, the jurors themselves visit the property and form their opinions. Appellant asked, and the court gave, this instruction, corroborative of that view:

“The court instructs the jury, that as the parties to this action, by mutual consent, allowed the jury to view the premises in question, and the viaduct, they have the right, in finding their verdict, to take into account such facts as they learned by viewing the property, as to whether the construction of the viaduct permanently depreciated or increased the market value of the property in question.”

--And the language is sanctioned by Mitchell v. Illinois and St. Louis Railroad and Coal Co. 85 Ill. 566; Green v. Chicago, 97 Id. 370; Peoria, Atlanta and Decatur Railroad Co. v. Sawyer, 71 Id. 361; Peoria and Farmington Railway Co. v. Barnum, 107 Id. 160.

Objection is also urged that the Superior Court erred in refusing to allow appellant to prove the size and width of property best adapted to warehouse and transportation purposes. We do not think any serious harm to appellant could have resulted from this ruling. The nature and character of the property, and its adaptation, had been previously sufficiently proved.

The most important question presented by the record is, whether the court erred in its instructions with regard to the connection of the Pennsylvania company with the case, and as to the liability of that company. On the trial, evidence was given of an ordinance of the city of Chicago, as follows:

“Whereas, on the 22d day of March, A. D. 1876, the city council of the city of Chicago did make an appropriation towards the erection of a viaduct over the tracks of the Pittsburgh, Fort Wayne and Chicago Railway Company at Eighteenth street, in the said city of Chicago; and whereas, the Pennsylvania company, (lessee of the Pittsburgh, Fort Wayne and Chicago railway,) through its general manager, has agreed, in writing, to pay, on account of said improvement, an aggregate sum of fourteen thousand ($14,000) dollars: Therefore, be it ordained by the city council of the city of Chicago:--

Section 1. That the department of public works is hereby directed to proceed to erect and complete, within one year from the passage of this ordinance, a good and sufficient viaduct, with stone abutments and iron frame-work, over the tracks of the Pittsburgh, Fort Wayne and Chicago Railway Company at Eighteenth street, in said city: Provided, the said railway company shall agree, by consenting to this ordinance through its authorized officer, to pay in monthly installments, upon the estimates of said department of public works and of the chief engineer of said railway company, to be issued as the work progresses, an aggregate sum of fourteen thousand ($14,000) dollars.

Sec. 2. That said viaduct shall be built under the joint superintendence of said department of public works and chief engineer of said railway company, in accordance with the plans and specifications now on file in the office of said department of public works.

Sec. 3. All expenses, of every nature and kind, in excess of said fourteen thousand ($14,000) dollars shall be borne by the said city of Chicago. Said city shall maintain the approaches to and floor of said viaduct at its own expense, and also do all ordinary repairs. The said city of Chicago shall save the said railway company harmless for any claim for damages by any person injured through the erection of said viaduct, and from all expenses connected with the erection of the same exceeding said sum of fourteen thousand ($14,000) dollars: Provided, however, the said chief engineer's services shall be rendered at the expense of said railroad company.

Sec. 4. This ordinance shall be in force from and after the acceptance of the provisions hereof by said railway company, by its authorized officer or officers.” And also of a letter, in the words following:

+--------------------------------------+
                ¦“PENNSYLVANIA COMPANY,              ¦)¦
                +------------------------------------+-¦
                ¦OFFICE OF THE GENERAL MANAGER,      ¦)¦
                +------------------------------------+-¦
                ¦PITTSBURGH, PENN., March 30, 1878.  ¦)¦
                +--------------------------------------+
                

Sir--On condition that the city of Chicago will, by ordinance, (copy of which is hereto attached,) provide for the erection of a viaduct over the tracks of the Pittsburgh, Fort Wayne and Chicago Railway Company, at...