Union National Bank of Chicago vs. Cross and another.

in any manner, but the witnesses based their estimates of depreciation principally upon the fact that the business was stopped. The witness Badger testified that the machinery was as good as before, but that the moment the attachment was levied fifty per cent. of the value was taken off, because it was a bankrupt institution; that it was damaged fifty per cent. because it was a bankrupt stock, and because the reputation of the concern was injured. The witness Cross testified substantially to the effect that the next day after the attachment the property was not worth within fifty per cent. of what it was the day before, by reason of the destruction of the business, and that he estimated the depreciation upon the fact that the property had been attached, and also by reason of the general depression in all business, and especially in the lumber business, during the time since the attachment was levied.

The charge of the court is not preserved in the bill of exceptions, but the verdict was based upon estimates of this character, and the question is raised, by objections taken to the evidence, whether such estimates form a proper basis for damages. In case of a wrongful levy upon a stock of goods kept for sale, which are afterwards returned to the owner, he may recover as part of the damages any depreciation in the value of his goods during the time they are held. Anderson v. Sloane, 72 Wis. 566; Beveridge v. Welch, 7 Wis. 465. The reason is plainly because the goods are kept for the purpose of sale, and, had they not been seized, they might have been sold at their value when seized; hence the depreciation in value may be properly said to be a reasonable and certain element of damages. But when property kept for use, and not for sale, is attached, the reason no longer holds good, because there is no presumption that the property would or could have been sold, but the presumption is to the contrary. It is settled by our own decisions that there can be no recovery for supposed loss of profits from the interruption of

Union National Bank of Chicago vs. Cross and another.

business in a case of this kind. Braunsdorf v. Fellner, 76 Wis. 1. The authorities are quite uniform in holding that, in the absence of malice, injuries to credit, reputation, and business are too remote and speculative to be recovered. 2 Suth. Dam. (2d ed.), § 512. In the present case it is entirely apparent from the evidence that the buildings and machinery attached were in nearly, or quite, as good condition for use at the time of the trial as when seized, and would have been nearly, if not quite, as useful to any person desiring to operate such a business in that locality; and it is equally apparent that the estimate of depreciation made by the witnesses was in fact the supposed injury to the defendants' reputation and business by reason of the sudden stoppage of the business by the attachment. As frequently said by the witnesses, it had become a bankrupt concern instead of a going concern, and this was clearly the basis upon which they figured out the supposed almost complete wiping out of values. As said before, the buildings and machinery were nearly, or quite, as available for the manufacture of lumber, to one who could secure the necessary logs, at the time of the trial as at the time of the seizure. The damage was in the bankruptcy of the institution. The defendants were undoubtedly entitled, in case the attachment was wrongful, to recover for the loss of the use of their property while held by the officer, which, in ordinary cases like the present, would be measured by its rental value; and, if the property were shown to bẹ damaged by wear or tear or negligent care in the hands of the officer, this also would be a proper element; but they are not entitled, under the guise of depreciation in value, to recover damages for injuries to their business, credit, and reputation resulting from bankruptcy.

Some objections were made to the form of the special verdict, but we do not consider them well taken.

By the Court.-Judgment reversed, and action remanded for a new trial.

Greenman vs. The Chicago & Northwestern R. Co.

GREENMAN, Respondent, vs. THE CHICAGO & NORTHWESTERN RAILWAY COMPANY, Appellant.

May 24-June 23, 1898.

Railroads: Negligence: Personal injuries: Pleading.

The complaint in an action for personal injuries-alleging that plaintiff was unloading a car of poles standing upon a spur track of the defendant company which ran into the yards of his employer; that defendant's servants backed an engine and cars upon said track; that it was the duty of defendant's said servants not to collide with or disturb the car at which plaintiff was working, but the engineer, in violation of his said duty and in total disregard of the signals of the conductor in charge of said engine and cars, carelessly, recklessly, and negligently backed them against said stationary car, causing it to move forward; that plaintiff tried to stop said car by standing on the side of the track and putting a block of wood under the wheels, but defendant's engineer carelessly, recklessly, and negligently, and in violation of the conductor's signals, and without plaintiff's knowledge, continued to back said engine and cars against the detached car, thereby pushing the latter over said block of wood, thereby, without any fault on the part of the plaintiff, causing the poles to fall from said car upon the plaintiff, injuring him— is held, on demurrer, to state a cause of action.

APPEAL from an order of the circuit court for Brown county: S. D. HASTINGS, JR., Circuit Judge. Affirmed.

Action for the recovery of damages claimed to have been sustained by the plaintiff by reason of the negligence of the defendant. The complaint is, in substance, that the plaintiff was in the employ of the Valentine-Clark Company, at the city of Green Bay, Brown county, Wisconsin, and was engaged in unloading a car of poles standing alone and detached from any engine on a spur track of defendant, which ran into the yards of the said Valentine-Clark Company, on the west side of the Fox river in said city of Green Bay; that, while plaintiff was so engaged in unloading said car, defend

Greenman vs. The Chicago & Northwestern R. Co.

ant's servants backed an engine and two cars onto said spur track; that it was the duty of the defendant's servants in charge of said engine and two cars not to collide with, or disturb in any way, the car at which plaintiff was working; that defendant's engineer, in violation of his said duty, and in total disregard of the signals made by the conductor in charge of said engine and two cars, to stop said engine and cars before reaching the stationary car at which plaintiff was working, carelessly, recklessly, and negligently backed said engine and cars against the said stationary car, causing it to move forward by the force of the impact; that the plaintiff endeavored to stop said car by standing on the side of the track and putting a block of wood beneath the wheels of said car, but defendant's engineer, carelessly, recklessly, and negligently, and in violation of the conductor's signals, and without plaintiff's knowledge, continued to back said engine and two cars against the said detached car, thereby pushing said detached car over the block of wood so placed beneath it by plaintiff, thereby, without any fault on the part of plaintiff, causing the poles with which said car was loaded to fall off said car and upon the plaintiff, thereby greatly injuring him, to his damage in the sum of $5,000, for which said sum, and for costs herein, plaintiff demanded judgment.

The defendant demurred to the complaint, alleging that it appeared upon the face thereof that it did not state facts sufficient to constitute a cause of action. The court entered an order overruling the demurrer, from which the defendant. appealed.

For the appellant there was a brief by Fish, Cary, Upham & Black, and oral argument by R. N. McMynn. They contended that the complaint shows that the alleged negligence of the engineer was harmless; that there was an intervening act of plaintiff which was the efficient cause of the cause of the plaintiff's injury. The falling of the poles upon the plaintiff was the proximate cause of his injury. The poles

Greenman vs. The Chicago & Northwestern R. Co.

fell because there was a block placed on the track in front of the wheels of the moving car.

For the respondent the cause was submitted on the brief of Cummings & Hayes.

PINNEY, J. The complaint proceeds upon the ground that it was the duty of the defendant's servants in charge of the management of the engine and two cars on the spur track of the defendant company, upon which the plaintiff was engaged in unloading a car of poles standing alone and detached from any engine, not to collide with, or disturb in any way, the car loaded with poles, at which the plaintiff was so working. This is, in substance, an allegation that it was the duty of the defendant, in the use and operation of the spur track, engine, and cars, by and through its servants and agents, not to collide with, or disturb in any way, the said car so loaded with poles, which was being unloaded by the plaintiff. This was by way of charging that the acts of the defendant's engineer constituted negligence and careless conduct on the part of the defendant company. While this is, in substance, the effect of the pleading, it is certainly not the most clear and logical method of stating the simple fact of the defendant's duty and breach of it; but there is no good reason for saying, we think, that the allegations will not serve to define the fact of its duty, and the breach of it. The complaint charges in sufficiently clear and vigorous language that the defendant's engineer in charge of said engine and two cars, before reaching the stationary car at which plaintiff was working, carelessly, recklessly, and negligently backed said engine and cars against the said stationary car, causing it to move forward by the force of the impact; that the plaintiff endeavored to stop said car by standing on the side of the track and putting a block of wood beneath the wheels of the car,- a matter that is not alleged as either improper or negligent, or to have caused