Chicago & N.W. Ry. Co. v. Calumet Stock Farm

• Decision Date: 18 December 1901
• Citation: 194 Ill. 9,61 N.E. 1095
• Court: Illinois Supreme Court
• Parties: CHICAGO & N. W. RY. CO. v. CALUMET STOCK FARM.

194 Ill. 9

61 N.E. 1095

CHICAGO & N. W. RY. CO.

v.CALUMET STOCK FARM.

Supreme Court of Illinois.

Dec. 18, 1901.

Appeal from appellate court, Second district.

Action by the Calumet Stock Farm against the Chicago & Northwestern Railway Company. Judgment for plaintiff was affirmed by the appellate court (96 Ill. App. 337) and defendant appeals. Affirmed.Botsford, Wayne & Botsford, for appellant.

Aldrich & Worcester and J. F. Snyder, for appellee.

HAND, J.

This is an action brought against the appellant for an alleged injury to three horses of appellee, caused by an accident to the car in which they were being shipped from Geneva, Ill., to Ft. Wayne, Ind. The declaration contained two counts. One charges negligent and the other willful and reckless misconduct on the part of appellant. The general issue was filed, and on the trial the jury returned a verdict for $1,500, and a judgment was rendered against appellant for that amount, which has been affirmed by the appellate court for the Second district, and a further appeal has been prosecuted to this court.

The evidence introduced on behalf of appellee tended to show that on August 10, 1893, it delivered to appellant, at Geneva, Ill., three horses, viz. Roy Wilkes, Nutonian, and Lady Roy, which were valuable for racing purposes, to be transported from that place, by way of Chicago, to Ft. Wayne, Ind.; that the horses were put on board a stock car, which, after it had reached Chicago, was set out of the train to which it had been attached, and was standing in appellant's yard, and that a train, in backing up to connect with the car, struck the car with great force, and that the horses were thrown down and injured. There was a conflict in the evidence as to whether the car, at the time of the accident, was in the yard of the defendant or the yard of the Pan Handle road, and as to whether the horses were injured at the time of said accident.

It is first contended by appellant that, as the declaration charges willful and reckless negligence in causing the accident, such negligence must be proven to sustain the action. Under this declaration, which charged the appellant with negligent, willful, and reckless misconduct, there is no question but what the appellee had the right to prove gross negligence; but, were the contention of appellant correct, we are of the opinion the jury would have been justified in finding that the evidence showed the car containing said horses was handled in a willful and reckless manner. William Monteith, a groom who was on the car, testified: ‘It was dark. We went in the yards at Chicago, lay there a couple of hours; made a flying switch, and struck our car. The drawbar was broken. When the car struck I was on my knees, changing the mare's bandages. I was thrown on my back. The lantern was knocked over; set fire to the straw. Roy Wilkes was at one end of the car. The horses were tied. When the car struck, halters were broken. The jolt of the car threw the horses down. The mare was down when I saw her. She fell down. When she came up she struck her head against the car. Nutonian went down. Made three attempts before he got up. He was strained across his loins. He tried to get up, and could not until I lifted him. Roy Wilkes went down. We did not get out of the Chicago & Northwestern yards until the following night. They were fixing the car.’ F. H. Wardlow, who was in the car, testified: ‘The accident was in the Northwestern yards. I was sitting in the car door. Roy Wilkes stood back and the other two horses stood in front,-in the front end of the car. The car struck the side where Roy Wilkes was standing. It knocked me out of the door. When I looked in the car he was standing on his haunches. The other two horses, one was lying on top of the other. The lantern Monteith had was knocked down. One of the doors struck the trotting sulky and smashed one wheel. Saw the next morning the drawbar had been smashed.’ Kelley Freshwater, who was also in the car, testified: ‘The car hit the train hard, bounded back, put our lanterns out, knocked things down, threw down the door on the south side of the car. Roy Wilkes kind of tripped and fell. His head struck the water bucket. The horses kind of jumped up in the air, broke their halters, and Roy Wilkes struck his head with terrible force on the outside of the car. It was dark. Monteith went for a light. We gathered up the lanterns. Roy Wilkes was standing in the middle of the car and the other two horses on either side, with their halters broken. Trunks were slewed around,-the big chest turned around more than it was. Roy Wilkes had some hard knocks on the side of his head. Lady Roy had a little cut which she got from the trunk. Nutonian had a cut on the ankle that he got from struggling in the accident.’

It is next contended that the horses were shipped under a contract which limited the liability of the appellant to the sum of $100 for each horse and to injuries which occurred upon its own line. The contract limiting the liability of the appellant is contained in a bill of lading which, in its entirety, constitutes both a receipt and contract, and is not binding upon the appellee, for two reasons-First, there is no evidence in the record that the appellee assented thereto; and, secondly, appellant cannot relieve itself, by contract, for an injury caused by its gross negligence. Furthermore, the questions of such assent and negligence are questions of fact, which have been determined adversely to the appellant both by the trial and appellate courts. Railway Co. v. Simon, 160 Ill. 648, 43 N. E. 596;Railway Co. v. Chapman, 133 Ill. 96, 24 N. E. 417,8 L. R. A. 508, 23 Am. St. Rep. 587. In Railway Co. v. Simon, supra, on page 653, 160 Ill., and page 597, 43 N. E., we say: ‘Where a contract limiting the liability of the carrier is contained in a bill of lading which, in its entirety, constitutes both a receipt and contract, the onus is on the carrier to show the restrictions of the common-law liability were assented to by the consignor. Field v. Railroad Co., 71 Ill. 458;Boscowitz v. Express Co., 93 Ill. 523, 34 Am. Rep. 191. And whether there is such assent is a question of fact. The mere...