Atchison, T. & S. F. R. R. v. Bump , 60 Ill. App. 444 ( 1895 )

Mr. Justice Waterman

delivered the opinion of the Court.

This action of the plaintiff below was based upon the alleged negligence of the defendant below in allowing a car it had delivered to the McCormick Company, for which the plaintiff below worked, to be out of order, by reason of. which condition of such car, he, while working for said McCormick Company, was injured.

So far as appears, the only relation of plaintiff in error to this car was that it had switched it into the yards of the McCormick Company, and delivered it to said company.

Plaintiff in error appears to have merely acted as a carrier or transporter of said car. Tinder these circumstances, plaintiff in error owed, in respect to a condition of this car, of which it does not appear it had any notice, no duty to ' any one.

Common carriers transport equally for all, new and old, sound and broken machinery, carriages, cars and utensils, not necessarily or known to be dangerous to handle or use. In merely delivering goods in the condition in which they were received by them, they make no warranty, express or implied, that it will be safe or prudent to handle or use such goods.

The plaintiff below was not an employe of the A., T. & S. F. By. Co.; it had no contractual relations with him, nor, so far as is shown, with the McCormick Company, after the delivery of these cars to said company. Sawyer v. M. & St. L. R. Co., 38 Minn. 103; A. T. & S. F. R. E. Co. v. Meyers, 63 Fed. Rep. 793.

The case is entirely different from what it would be if it appeared that plaintiff in error had been employed to transport steel or iron to the McCormick Company, and in such employment had selected a defective car and delivered such steel or iron to the consignee for its servants to unload the goods therefrom. In such case it would have selected the car from which, to its knowledge, the goods were to be taken to the company with which it contracted; in the present case it does not appear that it had any power of selection of these cars, but merely transported what was given to it.

Had plaintiff below been an employe of the defendant below, and been injured in the way he was while 'working for it, it would have been incumbent on him in an action brought to recover for such injury, to show that the defendant below had notice of the defective condition of the car. Atchison, T. & S. F. R. R. Co.. Cent. Ry. Co. v. Barslow, 55 Ill. App. 203.

It does not appear when the defective condition of the car arose; the spring may have been broken while the car was in the possession of the McCormick Company and being moved by it. Plaintiff in error had, therefore, not only no notice that this car was out of order, but it does not appear that by any act upon its part it became defective; neither is it shown that there was originally, or at any time, any such defect as that it is chargeable with notice of the condition from which the injury to the plaintiff below happened.

In brief, plaintiff in error is not shown to have been in any way responsible for the' condition of this car, or to have had at any time any relation to it other than that it switched the same into the yards of the corporation for whom the plaintiff below worked.

The court below ought to have instructed the jury to find for the defendant.

The judgment of the Circuit Court is reversed, and the cause remanded.

Gabt, J.

I concur in the result only and solely upon the ground that there is nothing in the case to show that the defect in the draw-bar may not have been the result of suddenly stopping the car in the last rod, perch or pole of its motion in the yard of the McCormick Company, without negligence by, or notice to, the plaintiff in error. It is in principle the same as the Barslow case cited by Judge Waterman. Whether the duty to exercise care grows out of one relation or another, the proof of negligence must be in the case, or no cause of action is shown.

Shefaed, J.

I am not prepared to express an opinion on part of the views expressed by Judge Waterman, but concur with the other members of this court in opinion that no negligence by the plaintiff in error is proved, and therefore the judgment should be reversed.