Black v. the Wabash

• Court: Supreme Court of Illinois
• Writing for the Court: MULKEY
• Citation: 111 Ill. 351,53 Am.Rep. 628,1884 WL 9967
• Parties: ROBERT BLACKv.THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY.
• Decision Date: 27 September 1884

111 Ill. 351
1884 WL 9967 (Ill.)
53 Am.Rep. 628

ROBERT BLACK
v.
THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY.

Supreme Court of Illinois.

Filed at Springfield Sept. 27, 1884.

[111 Ill. 352]

[111 Ill. 353]

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

[111 Ill. 354]

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.

[111 Ill. 355]

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

[111 Ill. 356]

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...