Indianapolis v. William Juntgen.

• Citation: 10 Bradw. 295,10 Ill.App. 295
• Parties: INDIANAPOLIS AND ST. LOUIS RAILROAD COMPANYa1v.WILLIAM JUNTGEN.
• Decision Date: 30 November 1881
• Court: United States Appellate Court of Illinois

10 Ill.App. 295

10 Bradw. 295

INDIANAPOLIS AND ST. LOUIS RAILROAD COMPANYa1

v.WILLIAM JUNTGEN.

Appellate Court of Illinois, Third District.

November Term, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Edgar county; the Hon. J. W. WILKIN, Judge, presiding. Opinion filed February 3, 1882.

Mr. C. V. JAQUITH and Mr. JOHN T. DYE, for appellant; that in the absence of a special contract, the company is liable only to the extent of its own line, cited R. R. Co. v. Mfg. Co. 16 Wall. 318; R. R. Co. v. Pratt, 22 Wall. 123; Darling v. R. R. Co. 11 Allen 295; Nutting v. R. R. Co. 1 Gray, 502; Burrows v. R. R. Co. 100 Mass. 26; R. R. Co. v. Berry, 68 Pa. St. 272; Root v. R. R. Co. 45 N. Y. 524; Babcock v. R. R. Co. 49 N. Y. 491; Converse v. Trans. Co. 33 Conn. 166; Perkins v. R. R. Co. 47 Me. 573; Bank v. Trans. Co. 23 Vt. 209; Buntnall v. R. R. Co. 32 Vt. 673; Ex. Co. v. Rush, 24 Ind. 403; McMillan v. R. R. Co. 10 Mich. 219; Hoagland v. R. R. Co. 39 Mo. 451; Coates v. Ex. Co. 45 Mo. 238; Stewart v. T. H. & I. R. R. Co. 5 Fed. Rep. 3.

What the contract between the shipper and carrier is, is a matter of evidence: Erie R'y Co. v. Wilcox, 84 Ill. 229.

The carrier may limit his liability by express contract: Erie R'y Co. v. Wilcox, 84 Ill. 239; U. S. Ex. Co. v. Haines, 67 Ill. 137; C. & N. W. R. R. Co. v. Montfort, 60 Ill. 175; Lawson on Carriers, § 236.

Where some parts of a contract are good, and others bad, the good may be enforced if there is no imputation of malum in se:Gelpcke v. Dubuque, 1 Wall. 222; U. S. v. Bradley, 10 Pet. 360.

The company is not responsible for damages resulting from the lawless acts of a mob: Taylor v. R'y Co. L. Rep. 1; Parsons v. Hardy, 14 Wend. 216; G. & C. R. R. Co. v. Rae, 18 Ill. 488; Wibert v. R. R. Co. 2 Kernan, 251; Thayer v. Burchan, 99 Mass. 521; M. C. R. R. Co. v. Burrows, 33 Mich. 6.

Mr. ANTHONY THORNTON, for appellees; that where goods are received as through freight, the company is liable beyond its terminus, cited Adams Ex. Co. v. Wilson, 81 Ill. 339; T. P. & W. R. R. Co. v. Merriman, 52 Ill. 123; Ill. Cent. R. R. Co. v. Frankenburg, 54 Ill. 88; C. & N. W. R. R. Co. v. Montfort, 60 Ill. 175; Ill. Cent. R. R. Co. v. Copeland, 24 Ill. 332; M. & St. P. R. R. Co. v. Smith, 74 Ill. 197.

Even in the case of an express contract the carrier is liable for negligence: Field v. C. & R. I. R. R. Co. 71 Ill. 458; Erie & W. T. Co. v. Dater, 91 Ill. 195; Boscowitz v. Adams Ex. Co. 93 Ill. 523.

The company is liable for loss occasioned by unreasonable delay in the transportation of cattle: Ill. Cent. R. R. Co. v. Frankenburg, 54 Ill. 88; C. & N. W. R. R. Co. v. N. L. P. Co. 70 Ill. 217; I. & St. L. R. R. Co. v. Herndon, 81 Ill. 143; Ill. Cent. R. R. Co. v. Waters, 41 Ill. 73; St. L. & S. E. R. R. Co. v. Dorman, 72 Ill. 504; K. P. R. R. Co. v. Nichols, 9 Kan. 235.

The carrier is excused only by uncontrollable circumstances: O. & M. R. R. Co. v. Dunbar, 20 Ill. 623; Ill. Cent. R. R. Co. v. McClellan, 54 Ill. 58; Ill. Cent. R. R. Co. v. Cobb, 64 Ill. 128; T. W. & W. R. R. Co. v. Lockart, 71 Ill. 627; T. W. & W. R. R. Co. v. Hamilton, 76 Ill. 393; Forward v. Pittan, 1 Tenn. R. 24; C. & N. W. R. R. Co. v. Sawyer, 69 Ill. 285; Mer. Des. Co. v. Kahn, 76 Ill. 520; Redfield on Carriers, § 25; Colt v. McMechen, 6 Johns. 166; Lawson on Carriers, § 13; Greenleaf's Ev. 219.

Common carriers can not claim immunity from damages resulting from the misconduct of their employes: P. Ft. W. & C. R. R. Co. v. Hazen, 84 Ill. 36; Blackstock v. N. Y. & E. R. R. Co. 20 N. Y. 48.

MCCULLOCH, J.

These three cases were argued together, and are so nearly alike that one opinion will answer for all. Appellant was sued by each one of the appellees for damages resulting from a wrongful delay in transporting certain cattle from certain points in Edgar county, Illinois, to the city of Buffalo, in the State of New York, and for improper treatment on the way, whereby they became depreciated in value. Juntgen made his shipment at Kansas Station, and took from the company a receipt or contract which purported to limit appellant's liability to its own line, which terminated at Indianapolis, in the State of Indiana. Bridgman & Rose, and also Caldwell, shipped from Mattoon by a verbal undertaking. It is contended, on the part of the several appellees, that their shipping contracts were for the whole distance from the several points of shipment to the point of destination, whereas appellant contends that its responsibility was to cease at the termination of its own line. In the view we take of the case, it is unnecessary for us to determine this question; and if the cause shall be again tried it will depend upon the evidence then introduced as to whether or not the cattle were shipped on through contracts. Appellant claims that Juntgen made his shipment by a written contract signed by himself, as well as by the agent of appellant, as follows:

“FREIGHT OFFICE INDIANAPOLIS & ST. LOUIS R. R. CO.

STATION, KANSAS, July 20, 1877.

Received of William Juntgen five cars cattle to be delivered at Indianapolis Station at special rates, being $20 per car, in consideration of which and for other valuable considerations, it is hereby mutually agreed that said company shall not be liable for loss by jumping from the cars, delay of trains or any damages said property may sustain, except such as may result from a collision of a train, or when cars are thrown from the track in course of transportation, to be fed and taken care of by the owner.

(Signed.)

GEORGE SEFTON, Agent.

WILLIAM JUNTGEN, Shipper.”

By which it is claimed he became bound, although appellant could not have so limited its liability by a simple receipt. Should this claim be well founded, it would still remain to be proved on the trial that the cattle in question were shipped by this contract, and that its terms were knowingly assented to by Juntgen.

The cattle in question in each one of these suits went forward by the same train, which had proceeded on its way as far as Collingwood near the city of Cleveland, when, as claimed by appellant, it was stopped by a body of strikers, and by an overpowering force, beyond the power of the railroad then having charge of the cattle, to control, and there detained for several days. During this interval it became necessary to unload the cattle for food and water, and there being no facilities at Collingwood for unloading the great number of cattle that had accumulated at that point on account of the strike, it became necessary to jump them out of the cars; after which they were driven to Painesville, a distance of twenty miles for yardage until the strike was over. It is claimed by appellee that this treatment greatly depreciated the weight as well as the value per pound of the cattle, and that this injury was aggravated by the cattle being huddled together in insufficient yards, in the hot sun, without shelter, and with an insufficient supply of either food or water at Painesville. It is shown, we think satis factorily, that, although some of the strikers had up to that time been in the employ of the Lake Shore Company, on which road the trouble occurred, yet there were a sufficient number of engineers, conductors and brakemen ready and willing to have taken the train in question through to Buffalo on the usual time, had they not been overpowered by superior forces from other roads. The manner in which this was done is best explained by Daniel M. Alvord, assistant yard-master of the Lake Shore road, who testified as follows:

“The men were called to take the train, and responded to the call, but they were prevented by the mob from taking the train out. They were early enough to take the train out. The mob refused to allow the men to go out, and refused to let the engines go. They made the engineers take the engines and put them in the engine house, and would not allow them to go into the yard to take the trains out at all. After they would not allow them to go out, we went to work and built pens, and went to unloading the hogs and sheep; and after the hogs and sheep were unloaded, we unloaded the cattle and started them to Painesville, where they could be fed, watered and taken care of. The mob of rioters spiked switches, pulled pins from between the cars, uncoupled them, ran cars off the tracks on the ends of the tracks, over the switches, took the hose off the engines and hid them, and used things up in general, so that they could not get an engine, or get to Painesville. I saw the engines after the hose was off, and the cars after the pins were out, and the cars off the track. I should think the average number of rioters was from 250 to 3,000. Some of them were employes and had been employes of the Lake Shore road, and some of them were not, and they refused to let anybody work for the Lake Shore road, and refused to work themselves. They said they would not allow anybody to go out of there; that if they did they would use violence. The engines which were to take the trains out in the afternoon of July 22, 1877, were in the Collingwood round-house, in charge of the foreman, until the mob took them out of his possession and control. A. T. Lawrence, caller, called the crew.”

The extensive character of this strike, and the number as well as the efficiency of its forces and agencies are well described by J. W. Van Nolta, who testified as follows:

“I resided in Erie, Pennsylvania, July, 1877; was not connected with any railroad at the time. There was a strike of railroad employes at that point, who organized themselves into a body called the strikers. It commenced July 22, and ended July 27 or 28. They had their regular meetings, and passed resolutions to compel the railroad companies to come to their terms. They numbered about 300, and were composed of men from the Philadelphia and Erie railroad, the Erie and Pittsburg railroad, and a few from the L. S. & M. S. R. R. I was present at the organization, and was unanimously elected...