Black v. the Wabash

Decision Date27 September 1884
Citation111 Ill. 351,53 Am.Rep. 628,1884 WL 9967
PartiesROBERT BLACKv.THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of DeWitt county; the Hon. GEORGE W. HERDMAN, Judge, presiding.

Messrs. MOORE & WARNER, for the appellant:

A common carrier can only make such contracts exempting itself from responsibility as are reasonable in the eye of the law; and the reasonableness of each contract must depend upon the circumstances of the case in which it is to be construed. Lawson on Contracts of Carriers, sec. 29; Rice v. Railway Co. 63 Mo. 314; Transportation Co. v. Cornforth, 3 Col. 280; Railroad Co. v. Lockwood, 17 Wall. 357.

The exemption clause in the contract is unreasonable, and does not bar the action. Rice v. Railway Co. 63 Mo. 314; Oxley v. Railway Co. 65 Id. 629.

Appellee having received actual notice within a reasonable time, and promised to investigate the claim, is estopped from insisting on want of form or limitation of time. Rice v. Railway Co. 63 Mo. 310; Oxley v. Railway Co. 65 Id. 634; Noyes v. Insurance Co. 4 Zabr. 447; Clark v. Insurance Co. 6 Cush. 342; Peacock v. Insurance Co. 1 Bosw. 338; Bartlett v. Insurance Co. 46 Maine, 500; Risinger v. Cheney, 2 Gilm. 84.

A common carrier can not, by special contract or otherwise, limit its common law liability for loss or damage occasioned by the negligence of itself or its agents or employes. 1 Addison on Torts, (Wood's ed.) 716-731; 2 Wait's Actions and Defences, 44-46; Wharton on Negligence, sec. 589; Cooley on Torts, 640, 684, 685; Lawson on Contracts of Carriers, chap. 2, p. 24; Railroad Co. v. Lockwood, 17 Wall. 357; Bank of Kentucky v. Express Co. 3 Otto, 174; Railroad Co. v. Waters, 41 Ill. 73; Oppenheimer v. Express Co. 69 Id. 62; Railroad Co. v. Wilcox, 84 Id. 239; Boskowitz v. Express Co. 93 Id. 523; Express Co. v. Kountz, 8 Wall. 342; York County v. Railroad Co. 3 Id. 107; Kuter v. Railroad Co. 1 Biss. 35; Manufacturing Co. v. Railroad Co. Id. 377; Fuller v. Talbot, 23 Ill. 357; Transportation Co. v. Newhall, 24 Id. 466; Railroad Co. v. Montgomery, 39 Id. 335; Railroad Co. v. Owens, 53 Id. 391; Railroad Co. v. McClellan, 54 Id. 58; Railroad Co. v. Shea, 66 Id. 471; Railroad Co. v. Sawyer, 69 Id. 285; Railroad Co. v. Thompson, 71 Id. 434; Transportation Co. v. Kahn, 76 Id. 520; Railroad Co. v. Hamilton, Id. 393; Railroad Co. v. Curtis, 80 Id. 324.

The trial court erred in refusing to let appellant prove that this pretended contract was unfairly, if not fraudulently, obtained; that it was not the contract on which the shipment was made; in holding that the appellee would not be liable for “actual” negligence; in modifying some of appellant's instructions and refusing others, and in giving for appellee the instructions it did; and the Appellate Court erred in affirming the judgment of the trial court.

Messrs. BROWN & KIRBY, for the appellee:

The clause of the contract by which appellant agreed to give notice of any loss he might sustain, is reasonable and valid. Railroad Co. v. Munson, 19 Ill. 136; Railway Co. v. Wilcox, 84 Id. 239; Despatch Co. v. Bolles, 80 Id. 473; Arnold v. Railroad Co. 83 Id. 273; Hutchinson on Carriers, sec. 218; Railroad Co. v. Black, 11 Bradw. 65; Express Co. v. Caldwell, 21 Wall. 264; Lee v. Railroad Co. 5 H. & N. 867; Wharton on Negligence, sec. 587; Lewis v. Railroad Co. 5 H. & N. 867; Rice v. Railway Co. 63 Mo. 314; Oxley v. Railway Co. 65 Id. 629; Wolf v. Telegraph Co. 62 Pa. St. 83; Young v. Telegraph Co. 34 N. Y. 390; York County v. Railway Co. 3 Wall. 107; Goggin v. Railway Co. 12 Kan. 416; Bankord v. Railroad Co. 34 Md. 197; Insurance Co. v. Scammon, 100 Ill. 644.

Appellant can not avoid the contract because he failed to read it. Railroad Co. v. Hale, 2 Bradw. 160; Grace v. Adams, 100 Mass. 505.

The letters from the general freight agent do not show a waiver of the right to have proper notice of the claim. Lintner v. Millikin, 47 Ill. 178; White v. Murtland, 71 Id. 250; Ogden v. Kirby, 79 Id. 555; Jordan v. Easter, 2 Bradw. 73.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

This was an action on the case, brought by the appellant, Robert Black, to the June term, 1882, of the De Witt circuit court, against the Wabash, St. Louis and Pacific Railway Company, the appellee, to recover damages for alleged negligence in the carriage and transportation of a lot of beef cattle belonging to the appellant, from Midland City, in said De Witt county, to the Union Stock Yards, in Cook county, resulting, as is claimed, in the loss of several head of the cattle, and serious injury to the others. The cause was tried before the court and a jury, resulting in a verdict and judgment for the defendant. On appeal to the Appellate Court for the Third District the judgment of the circuit court was affirmed, and the case is now before us for review.

The errors assigned upon the record, and relied on for a reversal, question the rulings of the trial court in the admission and exclusion of testimony, and in the giving, refusing and modifying of instructions. In order to a proper understanding of the questions thus raised, it will be necessary to advert, in a general way, to the leading facts in the case, as well as to the opposing theories, upon which the case was tried.

The appellant, being a farmer and shipper of stock, in the latter part of June, 1881, called on Cicero Lane, the station agent of appellee at Midland City, for the purpose of making arrangements for shipping a lot of cattle and hogs from that place to Chicago, over appellee's road. The agent informed him that at present rates the cars would cost him $33.50 per car, (or, as appellant states it, $30 per car,) but at the same time promised him he would try to get him better rates. Accordingly, on the first of July, or thereabouts, the agent informed him the company had made a lower rate, and that he could then ship his stock at $25 per car. In pursuance of this understanding, the appellant, on the 6th day of the following month, loaded his stock, consisting of ninety-four head of cattle and fifty-five head of hogs, in cars furnished by appellee, then standing on its tracks at Midland City. After the stock was loaded, and a short time before the train moved off, Lane, the station agent, came to appellant and told him he had better go to the office and sign his passes, which he did. The passes referred to were, in fact, a written agreement, in duplicate, between the company and appellant, containing the terms and conditions upon which the stock then in the cars was to be shipped, the same having already been signed by Lane on behalf of the company. Appellant testifies this agreement was signed by him in duplicate, on presentation by the agent, without any knowledge of the real character of its contents, and the evidence shows one copy of it was retained by appellant and the other forwarded by Lane to the general freight agent of the company at St. Louis. As appellant claims, on the arrival of the train at Chicago, and before he had an opportunity of examining the contract, an agent of the company came round and took it up, and has since had exclusive possession of it.

The ultimate question upon which this case hinges is, whether appellant, under the circumstances, is concluded by the provisions of the contract in question. The appellant, in presenting the case to the trial court, simply showed the time and place of the shipment of the stock, and the price to be paid for the cars used for that purpose, without developing the existence of the special contract. He then offered testimony tending to show the loss and injury to the cattle were occasioned by the negligence and delay of the company in their transportation, and thereupon rested. To meet the case thus made by appellant, appellee offered testimony tending to negative the charge of negligence on the part of the company, and also put in evidence the special contract above mentioned, which contains, among others, the following stipulation:

Tenth--In consideration of the rate aforesaid, it is further agreed that no claim for damages which may accrue to the party of the second part under this contract, shall be allowed or paid by the party of the first part, or sued for in any court by the party of the second part, unless a claim for such loss or damage shall be made in writing, verified by the affidavit of the party of the second part, or his or their agent, and delivered to the general freight agent of the party of the first part, at his office in the city of St. Louis, within five (5) days from the time said stock is removed from said cars.”

It is conceded appellant failed to give notice to appellee's general freight agent at the city of St. Louis, of the loss and damage to the stock, within the time or in the manner required by the above stipulation. It is claimed, however, by appellant, first, that the stipulation in question is an unreasonable attempt on the part of the company to limit its common law liability, not warranted by public policy, and that for that reason it is inoperative and void; and second, that admitting it to be prima facie valid, it is nevertheless, by reason of the circumstances under which it was obtained, not binding upon the appellant.

With respect to the first branch of the proposition we have no hesitancy in holding that a stipulation like this, when voluntarily and understandingly entered into by the shipper, is binding upon him. The manifest object of such a provision is to force those claiming to be damaged by the carrier's negligence, to promptly present their claims for adjustment while the facts and circumstances upon which they are based are fresh in the memories of parties and witnesses, and to prevent being harassed or imposed upon by dishonest claimants. We see nothing improper in...

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