Indianapolis v. Murray

• Decision Date: 31 January 1874
• Citation: 1874 WL 8774,72 Ill. 128
• Parties: INDIANAPOLIS, BLOOMINGTON AND WESTERN RY. CO.v.WILLIAM MURRAY et al.
• Court: Illinois Supreme Court

72 Ill. 128

1874 WL 8774 (Ill.)

INDIANAPOLIS, BLOOMINGTON AND WESTERN RY. CO.

v.WILLIAM MURRAY et al.

Supreme Court of Illinois.

January Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding.

Mr. J. C. BLACK, Mr. L. WELDON, Mr. T. B. ALDRICH, and Messrs. MCNULTA & ALDRICH, for the appellant.

Messrs. HUGHES & MCCART, for the appellees.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This record contains no evidence that, under the most favorable view, would support a recovery. The facts may be briefly stated: On the 21st day of August, 1872, appellees delivered to appellant, at LeRoy, in this State, a lot of hogs, which were placed in a double-deck car, No. 2133, belonging to the Cleveland, Columbus. Cincinnati and Indianapolis Railroad Company, and consigned to Sadler, Haven & Co., Pittsburgh. Appellant's railroad terminates at Indianapolis. It is in proof it was the general and long established custom of the company, in delivering freight to connecting lines, to deliver as consignor, and appellees, having been in the habit of shipping over this route, may be presumed to have been familiar with that custom, and contracted in reference to it. Accordingly, on the arrival of the hogs at the transfer station, near Indianapolis, they were delivered to the Cleveland. Columbus, Cincinnati and Indianapolis Railroad Company, with the name of appellant appearing on the way-bill as consignor, and also on the check given with the hogs by appellant to the company to whom the transfer had been made. Upon the back of the transfer-check was written, “Acct. Murray Bros.--Sadler, Haven & Co.,” but there is so much uncertainty as to when and by whom these words were placed there, that we can attach but little importance to them.

The contract entered into between the parties, when the hogs were placed on board the cars at LeRoy, obligated appellant to transport them to Indianapolis, ready to be delivered to the agent of the connecting line, consigned, numbered and marked as per margin, to be by the connecting company, or companies, carried to the place of destination designated, upon condition appellant's liability as a common carrier should cease when the stock shall arrive at the station named, ready to be delivered to the consignee or the next succeeding carrier, the company to guaranty the freight charges shall not exceed in amount the rates indicated in the contract.

The declaration counts upon this agreement mutually entered into between the parties, and in the second count it is set out in hæc verba. Having declared upon it, appellees are estopped to deny it is the contract between them and the company, and was understandingly executed.

It is not claimed appellees were damaged by any act done or omitted by appellant before the stock reached Indianapolis, and the defense might be rested on the single point, appellees had expressly agreed appellant should not be responsible for anything that should occur beyond that station; but the defense may be placed on the broader and more substantial ground, appellant has discharged its whole duty to appellees under the contract, has omitted no common law duty, and if loss has occurred, it must be attributed rather to the negligence of appellees.

The loss is said to have occurred in this way: The hogs were consigned to Sadler, Haven & Co., at Pittsburgh, arriving in due time and in good order. Of this there is no complaint. It appears one Chapman shipped some hogs of his own, from Le Roy, at the same time, in the same train with appellees' hogs, that were consigned to Sadler, Haven & Co. He accompanied the hogs, was on the train with them from Le Roy until they reached their destination, and the evidence tends to show he had the care, to some extent at least, of appellees' hogs. It is certain there was no one else on the train that had any care over them, and whatever attention they did receive was from Chapman. When the hogs reached Pittsburgh, they were delivered to the...