Peoria & Pekin Union Ry. Co. v. United States Rolling Stock Co.

Per Curiam. We are of the opinion that the plea of the statute of limitations should prevail as to car Ho. 3043. It will be seen that each one of the cars mentioned in the above agreement was delivered to the appellant to be switched at different dates, hence the appellee, if it has a cause of action, would have a separate one for each car. In the first declaration filed in October, 1884; the then plaintiffs declared for the loss of but three cars. All the cars were destroyed by fire September 27,1881. The amended declaration was filed in February, 1887, in which the charge for the loss of car Ho. 3043 -was first counted on as claimed. This it will be seen was more than five years after the caluse of action accrued, and was barred by the statute of limitations. The fact that the declaration was afterward amended so as to make appellees parties plaintiff, could not have the effect to revive the claim as to such car already barred. To gain the claim for this car in the original declaration by way of amendment would be no different in point of law than to file a new count for it. It was entirely omitted from the declaration till after the bar had taken place. It can in no way be regarded as a recounting for the same cause of action. This point seems to be fully settled in I. C. R. R. Co. v. Cobb, Christy & Co., 64 Ill. 128. In that case a new count was filed declaring on a cause of action for loss of oats, not embraced in the original declaration and after the lapse of the statute, and it was held to be within the statute. The plea was good as against so much of the count as was barred, and the fact that it set up 'a bar to all would not interfere to make it bad as to the portion barred- We are of the opinion that the appellee was a proper party to bring the suit. Merchants Despatch v. Smith, 76 Ill. 542; G. W. R. R. Co. v. McComas, 33 Ill. 185. That as to a shipper of cars over appellant’s road we must hold it to stand' in the relation of a common carrier, as was fully decided in P. & P. U. Ry. Co. v. C., R. I. & P. Ry. Co., 109 Ill. 136. The appellee was the owner of the cars destroyed by fire, and was in no way bound by the contract between the railways, who were lessees of appellant, and the appellant, even if their contract relieved the appellant as to them, from the obligations of a common carrier, a point we do not now decide. The appellant was in the general business of switching cars for all railroads which would furnish it business. Whatever may have been decided in the United States District Court in Missouri, or in any other courts different, if different from the rule announced in the above cited cause reported in 109 Ill. 136 above, could have no binding effect in this court, as we are bound by the decisions of the Supreme Court of this State; so we will not stop to consider the cases cited by counsel for the appellant on that subject. For the reason above given the judgment of the court below is reversed and the cause remanded. Reversed, and remanded.