Chicago & N.W. Ry. Co. v. Chapman

• Decision Date: 14 May 1890
• Court: Illinois Supreme Court
• Parties: CHICAGO & N. W. RY. CO. v. CHAPMAN.

133 Ill. 96

24 N.E. 417

CHICAGO & N. W. RY. CO.

v.CHAPMAN.¹

Supreme Court of Illinois.

May 14, 1890.

Appeal from appellate court, second district.

Action by Samuel W. Chapman against the Chicago & Northwestern Railway Company for the loss of a horse shipped over defendant's road under a contract which limited the defendant's liability in case of loss to $100. Plaintiff obtained judgment for $3,290, which was affirmed by the appellate court. Defendant appeals.

W. B. Keep and R. N. Botsford, (W. C. Goudy, of counsel), for appellant.

Sherwood & Jones, (A. H. Barry, of counsel,) for appellee.

SHOPE, C. J.

This is an action on the case by appellee against appellant, as a common carrier, to recover damages for the loss of the plaintiff's horse while being shipped over appellant's railroad. There is little dispute as to the facts of the case. There was ample evidence to show gross negligence on the part of the servants of the defendant from which the injury to the horse resulted. By the ruling of the trial court in giving an instruction for the plaintiff, and in the modification of one asked by the defendant, the question of law is presented whether it is competent for a railway carrier to limit or restrict by contract its liability for an injury to property, during its transportation, against the gross negligence of the carrier or its servants. The act in respect of common carriers, approved March 27, 1874, provides ‘that, whenever any property is received by a common carrier to be transported from one place to another within or without this state, it shall not be lawful for such carrier to limit his common-law liability safely to deliver such property at the place to which the same is to be transported, by any stipulation or limitation expressed in the receipt given for such property.’ This is substantially re-enacted in section 82, c. 114, relating to railroads. Rev. St. 1889, c. 114, § 82. These statutes do not in terms prohibit common carriers from limiting their common-law liabilities by contract with the owner of property delivered for transportation. Formerly the restriction of a carrier's liability, when expressed in a mere receipt, often gave rise to the question as to whether the shipper had knowingly assented thereto, and this enactment was doubtlessly intended to obviate the difficulty growing out of that condition. In many respects a railway carrier may, by express contract, limit its strict common-law liability. It may by special contract limit the liability to such damage or loss as may occur on its own line of carriage. Railroad Co. v. Frankenberg, 54 Ill. 88;Railway Co. v. Montfort, 60 Ill. 175;Field v. Railroad Co., 71 Ill. 458; Railroad Co. v. Wilcox, 84 Ill. 239;Railway Co. v. Jaggerman, 115 Ill. 407, 4 N. E. Rep. 641. The carrier may limit its liabilities against loss by fire without his fault, (Van Schaack v. Transportation Co., 3 Biss. 394;) and the liability may thus be limited as an insurer, and against other loss, not attributable to its negligence or that of its servants, and may require the value of goods offered for transportation to be fixed by the shipper, to protect itself against fraud in case of loss.

The courts of this state have never held that the carrier may limit or restrict its liability for loss or damage resulting from its own gross negligence, or the gross negligence of its servants. On the contrary, it has been repeatedly and uniformly held that it cannot do so, even by express contract with the shipper. The question first arose in Railroad Co. v. Morrison, 19 Ill. 136, and it was there said: ‘We think the rule a good one, as established in England and in this country, that railroad companies have the right to restrict their liability as common carriers by such contracts as may be agreed upon specially, they still remaining liable for gross negligence or willful misfeasance, against which good morals and public policy forbid that they should be permitted to stipulate.’ And substantially the same language is used in Railroad Co. v. Read, 37 Ill. 484, and in Railroad Co. v. Adams, 42 Ill. 474. In Railroad Co. v. Smyser, 38 Ill. 354, it was held that a railroad company may restrict its liabilities for loss or injury occurring during the transportation of property, the carrier being still held liable for gross negligence or willful misfeasance. So in Railroad Co. v. Adams, supra, it is said ‘that, although a railroad company might protect itself by contract against certain risks assumed by common carriers and belonging to their vocation, it was contrary to good morals and public policy that they should be allowed to stipulate against their own gross negligence, or that of their employes, or their willful default.’ In Oppenheimer v. Express Co., 69 Ill. 62, the court holds that the contract exempting carriers from liabilities is not to be construed as providing against loss or injury occasioned by actual negligence on their part. In the subsequent case of Arnold v. Railroad Co., 83 Ill. 273, it was said: ‘The doctrine is settled in this court that railroad companies may by contract exempt themselves from liability on account of the negligence of their servants, other than that which is gross or willful.’ In the Read Case, supra, the question arose where the plaintiff was riding on a free ticket, on the back of which was an indorsement to the effect that the person accepting the same assumes all risks of accident and expressly agrees that the company shall not be liable under any circumstances for injury to the person or property of the passenger while using the ticket. It was held that the acceptance and use of the ticket made the indorsement thereon a special contract, but that the contract did not exempt the company from liability for injury caused by gross negligence. In Railroad Co. v. Wilcox, supra, we said: ‘The law has wisely, and for reasons that concern the public welfare, inhibited a common carrier of passengers or freight from contracting against its own negligence, or that of its servants and employes.’ See, also, Railway Co. v. Beggs, 85 Ill. 80. In Express Co. v. Stettaners, 61 Ill. 184, goods were shipped from Chicago to New York, worth in fact $400, for which the company gave the shipper a receipt, limiting its liability to $50 in case of loss, of which the shipper had notice. It was there said that ‘even if it should be conceded that the ...