Aronson v. Cleveland & Pittsburg Railroad

The opinion of the court was delivered, November 23d 1871, by Thompson, C. J. When the error alleged is in arresting judgment we cannot look into the testimony for aid in pronouncing upon the action of the court. The question is upon the sufficiency of the plaintiff’s narr. If that be sound, the plaintiff is in general entitled to judgment on his verdict: Wilson v. Gray, 8 Watts 25. In the narr. in this ease we see no substantial defect. It does not show that the action should have been against the company [70] as warehousemen. The engagement of the company set forth hy plaintiff is as carriers. We must presume after verdict that this was made out. What possible chance there would be for a suit for the same goods against the company as warehousemen, I do not see. The plaintiff would be estopped hy his allegation that the goods were lost on transit, and not in a warehouse. If it had been shown that the goods were lost by warehousing, then indeed the plaintiff’s nan', would not have been such as to enable him to recover, and it would have been the duty of the court to have charged against him for want of correspondence between his allegata and probata. There is nothing in this suggestion of the defendants in error. And now, to wit, November 23d 1871, the arrest of judgment in this case by the court below is reversed, and judgment is ordered to be entered on the verdict for the plaintiff for the amount found by the jury, with interest from the date of the verdict, and the record is remitted for that purpose.