Chicago West Division Railway Co. v. Ingraham

23 N.E. 350, 131 Ill. 659, 1890 Ill. LEXIS 1198

• Court: Illinois Supreme Court
• Decided: January 21, 1890
• Status: Published

Opinion

Mr. Chief Justice Shope

delivered the opinion of the Court:

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 Iiorses 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 $1000. 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, 14 Q. B. D. 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 hot 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’s Pl. chap. 4, secs. 79, 85, 103; Ghitty’s 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 injuries to the person and to the property of appellee so far constitute 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 causes of action accrue 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—to 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’s PI. chap. 4, sec. 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 may, and conceding that it is faulty for duplicity, “this is a fault in pleading, only, because it tends to useless prolixity and confusion, and is therefore only a fault in form.” (Ibid.) Ordinarily this defect in pleading, being merely of form, can be taken advantage of only by special demurrer for that cause. “(Chitty’s PI. 228.) The defendant having filed the general issue, waived this formal defect, and tendered issue upon the material averments of the declaration. Therefore, if the plaintiff sustained his declaration by proof, his right of recovery would be as complete as if the two causes of action had been stated in different counts. It follows, that as the plaintiff had, under his declaration, a right to recover both for injury to his person and to his property, the court committed no error in so instructing the jury. This seems to have been the view of the learned counsel for appellant at the trial, for no demurrer was filed, and the evidence in respect of the damages was admitted without objection, and we are of opinion they have no just cause of complaint in regard to this instruction.

It is also insisted, that the court erred, to the prejudice of appellant, in modifying its eighth and ninth instructions. The eighth, as drawn, told the jury, “that the mere omission on the part of the defendant to perform any duty which it ought to perform is not sufficient to render the defendant liable.” The court added thereto the words, “unless such omission caused the injury complained of.” As asked, it stated an abstract proposition, which, without proper qualification, might tend to mislead, and might very properly have been refused. The modification does not relieve it of the criticism. It is said, however, that the jury, from the instruction as modified, would be justified in finding the defendant liable if the omission caused the injury, whether it had exercised ordinary care to prevent the same or not, and regardless of whether the plaintiff was in the exercise of due and proper care or not. Without pausing to discuss whether the instruction is susceptible of that construction, it is apparent that the jury could not have been led into that error. By the second instruction of appellee, and by the second, third, fifth, sixth, seventh, tenth, eleventh, twelfth and thirteenth, the rule in respect of the care required of the plaintiff, and the negligence of the defeñdant, requisite to constitute a right of recovery, was fully and amply stated, and the doctrine of comparative negligence given to the jury. In view of the character of instructions given, and the facts of the case, the jury could not, as we think, have been misled.

The ninth instruction, as asked, if correct in other respects, was inapplicable to the facts, and the court did not err in refusing to give it. There was no question involved of the right of the railway company to the use of its tracks, or of the duty “of foot passengers, or those traveling by ordinary methods, ” to yield to the street car the right to its track. The instruction, if given, if it had any effect, would have misled the jury into the belief that the street car company was not bound to exercise due and proper care to prevent collision with 'others using the same street,—which certainly is not the law. The ninth, as given, can scarcely be regarded as a modification of the instruction asked. There is no similitude between them. But the giving of this instruction, whether it be considered a modification of the one asked or an instruction given by the court, did appellant no injury. It is 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, as against any person, carriage, etc., driven or being thereon with a view to delay or embarrass the progress of the cars.”

Appellant had introduced in evidence an ordinance of the city giving the right to its tracks to appellant, as against any person, carriage, etc., put, driven or being thereon with a view to delay, hinder or embarrass the progress of the cars, and fixing a penalty against any one who should willfully so obstruct, hinder or delay such progress. In view of this ordinance, already before the jury, the instruction can not be said to be erroneous, or prejudicial to appellant.

Appellant produced as a witness the conductor of the car that collided with appellee’s buggy, who testified: “I saw this accident that happened on Twelfth street, near Desplaines, to Dr. Ingraham. When I first saw the horse and buggy they were going on the south track, in the same direction. Both of us were going west. The hind end of the buggy was about even with the horses, and we went on about fifty feet together, and all of a sudden the driver of the buggy pulled in ahead of the horses, so close that in the next second the car struck the buggy, and the buggy turned over. I didn’t have time to pull the bell, or anything else, because the notice was too short. * * * I was on the rear platform, and I saw the horse and buggy turn out of the track, and saw the whole business, and the driver put on the brake as quick as he could, and the car nearly stopped before it struck the buggy. * * * I know he (the car driver) could not have stopped it (the car) in time to have saved the buggy.” On cross-examination he repeated in detail the same thing, and was asked if, at the scene of the accident, just after it happened, he did not tell appellee that he was sorry; that there were so many people standing up in front that he-could not see him, appellee,—which he substantially denied having said. Ás affecting his credibility, it was material and important that he should have been in position to see what he testified he did see, and the question was clearly proper; and being inconsistent with his testimony, and material, and his attention having been specifically called to the time and place of making the alleged statement, it was competent to call witnesses and show that he did make the same, which was, in effect, at least, done.

But it is said there is discrepancy between the question asked of the principal witness and the witness called to contradict him, in this, that he was asked if he did not tell appellee that he was sorry,—that there were so many people standing up in front that he could not see him (appellee), while the interrogatory put to the impeaching witness was, whether he (the conductor) did not tell -appellee that he was sorry,—that he could not see the “accident” because there were people on the front platform of the car, and therefore the court-erred in allowing the witness, in rebuttal, to answer. The contention is without merit. Both witnesses testified that there was a conversation between the conductor and appellee at the time and place stated; both undoubtedly refer to the same conversation, and if the witness saw the appellee he must have seen the accident, and he could not have seen the accident without seeing appellee. Moreover, the rule must receive a reasonable construction, and if there was objection to the question of the character indicated, it should have been specifically pointed out, so that the interrogatory might have been changed to suit the phraseology of the principal witness. This was not done.

Finding no error, the judgment is affirmed. .

Judgment affimed.