Wright v. the Chicago & North-Western Ry. Co..

• Decision Date: 31 October 1880
• Citation: 7 Bradw. 438,7 Ill.App. 438
• Court: United States Appellate Court of Illinois
• Parties: ANDREW J. WRIGHT ET AL.v.THE CHICAGO & NORTH-WESTERN RAILWAY COMPANY.

7 Ill.App. 438

7 Bradw. 438

ANDREW J. WRIGHT ET AL.

v.THE CHICAGO & NORTH-WESTERN RAILWAY COMPANY.

Appellate Court of Illinois, First District.

October Term, 1880.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.Opinion on rehearing filed Nov. 8, 1880.

This was an action on the case by plaintiffs in error against defendants in error, to recover damages sustained by plaintiffs in the loss by burning, October 9, 1871, of their building, and certain specified goods and chattels being in it at the time, situate upon the southeast corner of Kinzie and North Clark streets, in the city of Chicago, occasioned, as it is alleged, by the defendant before and at the time having and keeping divers large quantities of dangerous and inflammable liquids upon its premises, situate near to those of plaintiffs.

The declaration contained thirteen counts, to seven of which, amongst them the tenth, the court below sustained a demurrer.The tenth count is based upon an ordinance of the city of Chicago, within which the accident occurred, then and long previously in force; and after the proper inducement showing the relative situation of the premises of plaintiffs and defendants, and describing the personal property, the count avers the existence of such ordinance, and incorporates it by reference to another count, into which it is copied as follows:

“It shall be unlawful for any person or persons or corporation to store or keep for sale, within the corporate limits of the city of Chicago, any crude petroleum, gasoline, naphtha, benzine, camphene, spirit gas, burning fluid, or spirits of turpentine, exceeding a quantity of five barrels of forty-five gallons each; and it shall be unlawful to keep for sale or on storage, any refined carbon oil, kerosene or other products--for illuminating purposes--of coal, rock or earth oils, excepting such refined oil as will stand a fire-test of one hundred degrees of Fahrenheit, according to the method and direction of John Tagliabue; and it shall be unlawful to keep any quantity of said articles, exceeding one barrel of forty-five gallons, in any part of a building, excepting a cellar, the floor of which shall be-five feet below the grade of the adjacent streets; and no crude petroleum, gasoline, naphtha, benzine, carbon oil, camphene, spirit gas, burning fluid, or spirits of turpentine, shall be kept or stand in front of any building, or any street, alley or wharf lot or sidewalk, for a longer time than is sufficient to receive in store or in delivering the same: Provided, such time shall not exceed six hours.”

The count then proceeds as follows:

“Yet the defendant, not regarding its duty in that behalf, nor the said ordinance, did, on, to wit: the seventh day of October, 1871, have, and store, in its said building, large quantities of divers inflammable and dangerous liquids, to wit: ten barrels (each containing forty-five gallons) of each of the following liquids, to wit: crude petroleum, gasoline, naphtha, benzine; and also of each of the following liquids, to wit: refined carbon oil, kerosene, gasoline, naphtha and benzine, products--for illuminating purposes-- of coal, rock or earth oils, which could not stand a fire test of one hundred Fahrenheit, according to the method and directions of John Tagliabue, and from and after the said seventh day of October, 1871, up to and till the time of their destruction by fire, as hereinafter mentioned, continued to have the said liquids in its said building, and there to keep the same on storage, the place in the said building where the said liquids were kept not being a cellar the floor of which was five feet below the grade of the adjacent streets.And plaintiffs aver that afterward, to-wit: on the ninth day of October, 1871, while the defendant did so have the liquids in its said building, and did so keep the same on storage, its said building and the liquids therein took fire, and the flames therefrom spread so rapidly, on account of the very inflammable nature of the said liquids, to the said building and chattels of the plaintiff that the same were wholly destroyed, and lost to the plaintiffs.And the plaintiffs further aver that but for the extra rapidity with which the flames spread from the defendant's to the plaintiffs' building, on account of the said inflammable materials, the building, and the goods and chattels of the plaintiffs would not have been destroyed and lost to them.And the plaintiffs further aver that by reason, and on account of the said unlawful acts of the defendant in so having the inflammable liquids in its building, and in so keeping the same therein on storage, said buildings and chattels of the plaintiffs were then and there wholly destroyed and lost to the plaintiffs, to their damage,” etc.

There was a trial upon the remaining five counts under the general issue thereto, and plaintiff's evidence showed that their building and its contents were in fact burned at the time of the great fire in Chicago, October 9, 1871, which swept over the locality where the premises of both plaintiffs and defendant were situate; but the plaintiffs' case was presented on the theory that they could and would have saved a large portion of their horses, carriages, harness, etc., belonging to their livery business, and at the time in said building but for a sudden explosion which occurred on defendant's premises by reason of dangerous and explosive substances being negligently or unlawfully kept therein.But when plaintiffs' evidence was closed, the court, at the instance of defendant, peremptorily instructed the jury to find for the defendant, which was accordingly done; and judgment having passed upon the verdict, the plaintiffs bring the case to this court on error.

Mr. B. C. COOK and Messrs. LAWRENCE, CAMPBELL & LAWRENCE, for defendant in error; upon application for a rehearing, that it was competent for the court after the close of plaintiff's testimony to decide that there was no evidence upon which the jury could properly find a verdict for the plaintiff, and to direct a verdict for the defendant, cited Improvement Co. v. Munson, 14 Wall. 448;Pleasants v. Fant, 22 Wall. 120;Parks v. Ross, 11 How. 362;Bowditch v. City of Boston, 10 ReporterNo. 7;Ryden v. Wombell, 4 Exch. 32;Giblin v. McMillin, 2 P. C. App. 355;Jewell v. Parr, 13 C. B. 916;Toomey v. L. B. R'y Co.3 C. B. 146;Phillips v. Dickinson, 85 Ill. 11;Poleman v. Johnson, 84 Ill. 270.

The distinction between keeping in store, and for other purposes, is uniformly recognized by the courts: Ins. Co. v. Langdon, 6 Wend. 628;O'Neilv. B. F. Ins. Co. 3 Comstock, 127;Hynes v. Ins. Co.17 Barb. 119.

In this casethe defendant becomes a warehouseman: P. C. & St. L. R. R. Co. v. Hollowell, Am. Law Reg. Feb. 1880;Rothschild v. M. C. R. R. Co.69 Ill. 164;Mer. D. T. Co. v. Hallock, 64 Ill. 284;Ill. Cent. R. R. Co. v. Friend, 64 Ill. 303.

A recovery cannot be had at common law, because that which the law authorizes cannot be a nuisance so as to give a common law right of action: Trans. Co. v. Chicago, 98 U. S. 635.

The allegations and proof must agree: Lloyd v. Karnes, 45 Ill. 62;Moss v. Johnson, 22 Ill. 633;Sherman v. Blackman, 24 Ill. 350;Cast v. Roff, 26 Ill. 452;Heath v. Hall, 60 Ill. 344;House v. Davis, 60 Ill. 367;Camp Point Mfg. Co. v. Ballou, 71 Ill. 417;T. W. & W. R'y Co. v. Morgan, 72 Ill. 155;T. W. & W. R'y Co. v Jones, 76 Ill. 311;Beggs v. T. W. & W. R'y Co.85 Ill. 80;T. W. & W. R'y Co. v. Foss, 88 Ill. 511;Ill. Cent. R. R. Co. v. McKee, 43 Ill. 119;C. & A. R. R. Co. v. Howard, 38 Ill. 414;Quincy Coal Co. v. Hood, 77 Ill. 68.

A railroad company, as to carrying facilities, is not bound to provide in advance for, or anticipate, extraordinary occasions: G. & C. N. R. R. Co. v. Rae, 18 Ill. 488;C. & N. W. R. R. Co. v. Carroll, 5 Bradwell, 201;Quinn v. Ill. Cent. R. R. Co.51 Ill. 495.

The damage must be the proximate cause of defendant's negligent act; in this casethe defendant's delay in shipping the oil is but the remote cause of plaintiffs' loss; the fire was the direct cause: Morrison v. Davis, 20 Pa. St. 171;Denny v. N. Y. Cent. R. R. Co.13 Gray, 481;Railroad Co. v. Reeves, 10 Wall. 190;Craine v. Petrie, 6 Hill, 522;Cuffv. R. R. Co. 6 Vroom, 30;Bank of Ireland v. Evans, 5 H. of L. Cas. 389;Lord's Bailiff v. Cor. Trinity House, 39 L. J. Ex. 163;T. W. & W. R. R. Co. v. Muthersbaugh, 71 Ill. 572;Phillips v. Dickerson, 85 Ill. 11; Wood's Mayne on Damages, 69;Daniels v. Balentyne, 23 Ohio St. 532;R. R. Co. v. Kellogg, 94 U. S. 475;Penn. R. R. Co. v. Fries, 6 Reporter, 151;Hoag v. L. S. & M. S. R. R. Co.85 Pa. St. 293;Waters v. Mer. LouisvilleIns. Co. 12 Curtis, 406;A. T. & S. F. R. R. Co. v. Stanford, 12 Kan. 354;Nashville & C. R. R. Co. v. David, 19 Am. Rep. 594;Ryan v. N. Y. Cent. R. R. Co.35 N. Y. 214;R. R. Co. v. Kerr, 12 P. F. Smith, 353;Scott v. Shepard, 3 Wils. 403.

A railroad company is not liable for damages occasioned by unforeseen and extraordinary calamities: Withers v. North Kent R'yCo. 27 L. J. Ex. 417;Blyth v. Birmingham Water Co.11 Ex. 781; Saunders on Negligence, 10;Gerhard v. Bates, 2 Ell. & B. 490;Greenland v. Chaplin, 5 Ex. 248;T. W. & W. R. R. Co. v. Muthersbaugh, 71 Ill. 572;Phillips v. Dickson, 85 Ill. 11.

Amendments to a declaration should not be allowed after a large part of the evidence is received: Kestler v. Raymond, 10 Ind. 200;Miles v. Van Horn, 17 Ind. 245;Hoot v. Spade, 20 Ind. 326;Blasingham v. Blasingham, 34 Ind. 86.

The amendment stated a new cause of action, and to this the Statute of Limitations was well pleaded: Connett v. Chicago, 8 Chicago Legal News, 323;Ill. Cent. R. R. Co. v. Cobb, 64 Ill. 128;Skowhegan Bank v. Cutler, 49 Me. 315;Woodward v. Ware, 37 Me. 564;German v. Judge, 27 Mich. 139;M. C. R. R. Co. v. Judge, 35 Mich. 227;Woodbridge v. Hathaway, 45 Tex. 380;Sandford v. Scott, 51 Ala. 557;Marble v....