Ill. Cent. R.R. Co. v. Read

• Decision Date: 30 April 1865
• Citation: 1865 WL 2848,37 Ill. 484,87 Am.Dec. 260
• Parties: ILLINOIS CENTRAL RAILROAD COMPANYv.GEORGE D. READ.
• Court: Illinois Supreme Court

37 Ill. 484

1865 WL 2848 (Ill.)

87 Am.Dec. 260

ILLINOIS CENTRAL RAILROAD COMPANY

v.GEORGE D. READ.

Supreme Court of Illinois.

April Term, 1865.

APPEAL from the Circuit Court of Cook county; Hon. ERASTUS S. WILLIAMS, J.

This was an action on the case brought in the court below against the Illinois Central Railroad Company, to recover damages for an injury to the person of the plaintiff, George D. Read. Three counts of the declaration charge the defendant's negligence to have been gross. The defendant pleaded the general issue and four special pleas, the nature of all of which appears fully in the opinion of the Court. The first special plea avers that in consideration of defendant having issued to plaintiff a free pass, plaintiff assumed all risk of accidents. The second special plea sets up verbatim the endorsement on the pass or contract whereby plaintiff assumed such risk; the third special plea avers that the negligence, if any, was that of defendant's servants and not that of defendant itself, and the fourth special plea avers that after, etc., the plaintiff for a valuable consideration released the defendant, etc.

To the first, second and third special pleas general demurrers were filed and sustained, and to the fourth a special demurrer, assigning for cause that it does not appear that the said release or discharge was under seal, was also sustained. The defendant stood by his pleas and went to trial on the general issue only, but offering in evidence the facts alleged in each of his special pleas, which evidence was excluded and exception taken. Upon the conclusion of the evidence, which tended to show that plaintiff was the injured by running of the engine of defendant's freight train into the car in which plaintiff was riding, the court on behalf of the plaintiff below, gave the following instructions:

1. The jury, in assessing damages in this action, may take into consideration, not only the loss, expense and injury arising from the injuries received at the time of the accident, as well as the bodily pain and mental suffering of the plaintiff; but also the prospective loss and damage, if any, arising from any disability resulting to plaintiff, which renders him less capable of attending to his business than he would have been if the injury had not been received.

2. The jury, in assessing the damages in action, may take into consideration, not only the bodily disability occasioned by the accident, but also any impairment of his intellectual faculties and general health, if any, which they are satisfied, from the evidence, will affect or impair his future ability to attend to his business the same as if the injury, complained of, had not been received.

3. If the jury believe, from the evidence in this case, that plaintiff, while traveling on defendant's road, received through the agency of said defendant, any injury to health, life or limb, the result of gross negligence, then he is entitled to recover such damages as will recompense to him the loss, or losses, he may have sustained, as the result of such injury or injuries.

4. If the jury believe, from the evidence, that the defendant has been injured in health of body or mind, or in his limbs, so that his ability to labor and attend to his affairs, and generally pursue the course of life he might otherwise have done, as well since as before the accident, and such injuries were inflicted upon him through the gross negligence of defendant, while being carried as a passenger upon the road, the jury may assess such damages, present and prospective, as will recompense to him all the losses he may have sustained as a result of such injuries.

5. In estimating the plaintiff's damages, it is proper for the jury to estimate the effect of the injury in future upon the plaintiff's health, if any, the use of his hand, and his ability to attend to his affairs generally in pursuing his course of life, and the bodily pain and suffering; the necessary expenses of medical care and loss of time, and all damages, present and prospective, which can be treated as a necessary result to the injury inflicted by the collision upon the plaintiff in this action.

Which instructions were excepted to by defendant. On behalf of defendant the court gave this instruction:

The jury are instructed that, in estimating the damages in this case, the jury are not authorized to award vindictive or exemplary damages, although the jury may believe, from the evidence, that the agents of the defendant were guilty of negligence which caused the injury complained of.

The jury found a verdict for the plaintiff for $4,000, upon which, after the usual motion for a new trial had been denied judgment was entered. The record assigns as errors, the sustaining the demurrers to defendant's special pleas, and excluding evidence of the matters therein averred, and overruling defendant's motion for a new trial.

MCALLISTER, JEWITT & JACKSON, for appellant, and GEORGE C. CAMPBELL, in reply.

THOMAS HOYNE, for appellee. Mr. JUSTICE BREESE delivered the opinion of the court:

This was an action on the case brought by the appellee against the appellant in the Cook county Circuit Court, for an injury received by appellee while riding on appellant's cars.

The general issue was pleaded, and also three special pleas, setting up, as a defense, the fact, that without any consideration, appellant had given to appellee a free ticket or pass to ride on the railroad for a certain time, on which ticket was endorsed this agreement:--“The person accepting this free ticket assumes all risks of accidents, and expressly agrees that this company shall not be liable, under any circumstances, for any injury to the person or for any loss or injury to the property of the passenger using this ticket.”

A demurrer to those pleas was sustained, and the only question arising upon them is, as to the effect of this agreement.

There was also a plea of release by appellee to appellant, as follows: “That after the committing of the several grievances in etc., and before the commencement of this suit, to wit, on etc., at etc., the plaintiff, for a valuable consideration to him in hand paid by the said defendant, did release and forever discharge the said defendant and of from any and all liability to the said plaintiff for or by reason of the said several supposed grievances, and each and every of them, in the said declaration set forth, concluding with a verification. To this plea, a general demurrer was sustained.

The questions presented by the record for our deliberation are, the validity of these pleas, and another question as to the propriety of certain instructions given for appellee, and the incidental question of damages which we will not consider at this time.

It is insisted by appellant, that the endorsement on the free ticket was in all respects a valid agreement, and was a perfect immunity to the company for any accident or injury that might happen to the person holding it while upon the cars, no matter how the injury might be occasioned. That the holder assumes all the risks of injury from the negligence of the servants and agents of the company, and that it was competent for the parties to make the agreement, and when made is valid and binding.

The first case cited by appellant, in support of this proposition is the case of Welles v. The New York Central Railroad Co., 26 Barb., 641, a case quite similar to the one before us.

In that case it was held, such agreements are valid, and exempt the company from all injuries, except such as are the result of fraudulent, willful or reckless misconduct on the part of the defendant's officers or agents. It is there held also, that it is now an admitted principle that a common carrier, like other bailees for hire, may limit his risk by express contract, although a carrier cannot contract for an exemption from losses arising from his own personal fraud or gross negligence. Such a contract would be contra bonos mores and void.

This case was taken to the Court of Appeals, where it was held, there was nothing illegal in such contracts, and that by a fair construction, their stipulations cover every degree of negligence, save gross negligence, which is evidence of fraud or of willful injury. The court also held, that though this rule applied to individual carriers of persons, it could not apply to corporations engaged in that business. The court say, fraud and willful misfeasance include a will, a motive, and a corporation, as such, can have no motive, no will, though its agents may have both; and it would hardly do to hold the property of corporations liable for the willful or criminal act of a person employed by the corporation, as such acts cannot be said to be done in the course of his employment.

And the court further say, that the term “gross negligence,” as used by the law, has a technical meaning, which is not properly applicable to those acts of servants of a corporation for which the corporation is responsible; though as between their acts which are slightly negligent, and those which are very negligent, there is no different rule of responsibility. It is the fact of negligence, mere negligence, and not its degree, which incurs the liability.

That the contract in question is, simply, a contract not to be liable for the mere negligence of the agents of the company, and that the judge who tried the cause was not authorized, by the agreed state of facts on which the case was tried, to find that the injury was the result of “gross negligence,” and that the case must be considered as if the word “gross” were omitted in the finding. Justice SOUTHERLAND, who dissented, held the contract for exemption was illegal and void as against public policy, as tending to lessen the care such companies are required to bestow, and which is imposed on them as a public duty as common carriers of persons and property. This case also holds the company would be liable for gross...