Russell v Waterford and Limerick Railway Company

• Jurisdiction: Ireland
• Judgment Date: 03 July 1885
• Date: 03 July 1885
• Court: Court of Appeal (Ireland)

Ex. Div.

Before DOWSE, B., and ANDREWS, J.

RUSSELL & SONS

and

THE WATERFORD AND LIMERIOK RAILWAY COMPANY

Brunsden v. HumphreyELR 11 Q. B. Div. 712.

Martin v. KennedyUNK 2 B. & P. 69.

Seddon v. Tutop 6 Term. R. 607.

Thorpe v. CooperENR 5 Bing. 116.

Backhouse v. Bonomi 9 H. L. Cas. 503.

Mitchell v. Darley Main Colliery Co.ELR 14 Q. B. Div. 125.

Barnett v. LucasUNK Ir. R. 6 C. L. 247.

Brunsden v. HumphreyELR 14 Q. B. Div. 141.

Randall v. RoperUNK 27 L. J. Q. B. 266.

Fetter v. BealENR 1 Ld. Raym. 339.

Nelson v. CouchENR 15 C. B. (N. S.) 99.

Shiels v. cannonUNK 16 Ir. C. L. R. 588.

Clegg v. Dearden 12 Q. B. 576.

Spark v. HeslopUNK 28 L. J. Q. B. 197.

Dingle v. Hare 29 L. J. C.P. 143.

Brunsden v. HumpheryELRELR 11 Q. B. Div. 712; 14 Q. B. Div. 141.

Spiliting cause of action — Negligence in carriage of goods — Separate actions for injures to several portions of same consignment — Liability to vendee of part.

314 Ex. Div. so called, and not conventional rents, such as the one we cre deal-1885. ing with here undoubtedly is. DONEGAN The demurrer, therefore, must be allowed, with costs. NmILL. ANDREWS, J concurred. Solicitor for the Plaintiff : W. Mooney. Solicitor for the Defendant: B. J. Jones. RUSSELL & SONS v. THE WATERFORD AND • LIMERICK RAILWAY COMPANY (1). Splitting cause of action-Negligence in carriage of goods-Separate actions for injuries to several portions of same consignment-Liability to vendee of part. • In September, 1883, the Plaintiffs (a firm of millers) delivered to the DefenÂdant Railway Company a quantity of flour to be carried on the railway, nine sacks being consigned to D. (a baker), who had purchased the same from the Plaintiffs, and the remainder being consigned to the Plaintiffs themselves. Some of the flour, comprising one of the sacks received by the Plaintiffs, and the greater portion of that delivered. to D., was damaged in the carriage by coming in contact with paraffin oil. D. had used up in his trade two and a-half sacks of the injured flour before he discovered that it was conÂtaminated, and therefore he returned five sacks, 10 st., 12 lbs., to the Plaintiffs, and claimed from them a sum of £40 13s. 2d. as damages for the two and a-half sacks which he had used. The Plaintiffs notified to the Defendants the damage sustained, and issued a civil-bill process to recover damages for the injury to six sacks, 10 st., 12 lbs., of the flour, but not claiming in reÂspect of the two and a-half sacks used up by D., and they obtained a civil-bill decree on that process against the Defendants on the, 31st October, 1883. D., on the 17th December, 1883, issued a civil-bill against the Plaintiffs for the damage to the two and a-half sacks, and obtained a decree against them on the 19th April, 1884, which was affirmed on appeal and the amount was paid by the Plaintiffs to D. The Defendant Railway Company were served by the pre (1) Before Down, B., and ANDREWS, J. VOL. XVI.] Q. B., C. P., & EX. DIVISIONS. 315 sent Plaintiffs with notice of D.'s civil-bill and the appeal from the decree, and Ex. Div. invited to attend on the hearing. The Plaintiffs afterwards sued the Defen- 1885. dant Railway Company by civil-bill to recover the amount which they had been RUSSELL •obliged to pay to D. for damages and costs under the decree of the 19th April, v. 1884 :- WATERFORD Held, that the injury to the two and a-half sacks being an integral part of Ra LIMERICK nwxy Co. the cause of action arising from the Defendants' negligence in the carriage of flour, and for which the Plaintiffs sued in the first civil-bill process, the second civil-bill action was not maintainable. SPECIAL CASE stated for the opinion of the Court by Mr. JusÂtice Harrison from the South Riding of Tipperary Spring Assizes, 1885. " 1. The Plaintiffs are millers, carrying on business in the towns -of Tipperary and Limerick. " 2. The Defendants are a Railway Company, carrying between, amongst other places, Tipperary and Limerick. " 3. The Plaintiffs delivered to the Defendants at Limerick, on the 14th September, 1883, forty-eight sacks of first flour, weighing six tons, and on the next day, the 15th September, 1883, amongst ther goods, twenty-four sacks of first flour, weighing three tons, to be carried for the Plaintiffs from Limerick to Tipperary, there to await the order of the Plaintiffs. For the purposes of this case, it is to be taken as if all the said flour had been...