Toledo v. Beggs

• Decision Date: 31 January 1877
• Citation: 28 Am.Rep. 613,1877 WL 9487,85 Ill. 80
• Parties: TOLEDO, WABASH AND WESTERN RAILWAY COMPANYv.HARVEY BEGGS.
• Court: Illinois Supreme Court

85 Ill. 80

1877 WL 9487 (Ill.)

28 Am.Rep. 613

TOLEDO, WABASH AND WESTERN RAILWAY COMPANY

v.HARVEY BEGGS.

Supreme Court of Illinois.

January Term, 1877.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Menard county; the Hon. LYMAN LACEY, Judge, presiding.

Messrs. DUMMER & BROWN, for the plaintiffs in error.

Messrs. MORRISON, WHITLOCK & LIPPINCOTT, for the defendant in error.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was case, for personal injuries, brought to the Morgan circuit court and taken by change of venue to the county of Menard, and there tried by a jury, on the general issue. There was a verdict for the plaintiff, which the court refused to set aside and rendered judgment on the verdict, to reverse which the defendants bring the record here by writ of error.

The defendants were sued as a railroad incorporation, and the plaintiff, in his original declaration, alleged they were common carriers, and in duty bound to provide suitable and safe cars and engines, and to employ safe, careful and competent agents and servants to conduct their trains. It then avers, on a certain day in October, 1873, the plaintiff got upon the train of these defendants, he then having a ticket issued by the defendants, for his transportation from Hannibal to Jacksonville, and it was the duty of defendants safely to transport him accordingly, and to furnish for his transportation safe and suitable cars, and careful and competent agents and servants to conduct them. It is then averred, that defendants negligently and carelessly put into said train of cars a certain caboose, in which plaintiff was placed, having a cracked and broken wheel, and placed in charge of negligent, careless, reckless and incompetent servants, by means of which the car on which defendant was, by reason of the defective and broken wheel so carelessly used, was thrown from the track and overturned, and plaintiff thereby greatly injured.

There was a plea of not guilty, and issue joined. At a subsequent term there was an amended declaration filed, not differing substantially from the original, except more particularly alleging the duty to provide safe, sure and well constructed and sound railroad bed and track, and sure and safe cross-ties; averring defendants did not furnish safe, sound and well constructed railroad wheels, road bed and cross-ties, but the rails were badly constructed and the ties rotten, by reason of which, etc.

It would appear from the transcript before us, there was a general demurrer to the original declaration, but as a plea in bar was subsequently filed, the demurrer was waived.

Defendants below, after the issue had been made up, and the amended declaration filed, put in a plea to the jurisdiction of the court, alleging that the supposed cause of action accrued in Pike county, and not in Morgan county, nor in the county of Menard, and defendants' principal office was at Springfield, in Sangamon county, and not in Morgan county or elsewhere.

This plea, on motion of plaintiff, was stricken from the files, and this is the first error alleged.

We think there was no error in striking this plea from the files. The amended declaration did not make a new or different case from that set out in the original declaration, to which the general issue had been pleaded and issue made up. There was then on file a plea to the merits, which admitted jurisdiction, and it was too late to plead specially to the jurisdiction.

The next point made is, the refusal of the court to continue the cause on suggestion and affidavit that this railroad, by the adjudication of the Vermilion circuit court, had been placed under the control of a receiver.

We are not of opinion this was ground for a...