The Chicago v. Harmon
| Citation | 12 Bradw. 54,12 Ill.App. 54 |
| Court | United States Appellate Court of Illinois |
| Decision Date | 31 May 1882 |
| Parties | THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANYv.LAWRENCE HARMON. |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Peoria county; the Hon. N. M. LAWS, Judge, presiding. Opinion filed December 28, 1882.
On the 5th day of July, 1881, the appellant received at its station at Ottawa, Ill., from one Neely, the agent of appellee, a mare and colt to be transported to Peoria, about seventy-five miles distant.
The animals were shipped in a box car under the superintendence of Neely and the agent of appellant at Ottawa. The car reached Peoria the next morning about 9 o'clock, and the animals were delivered to appellee. It is claimed that the mare had become overheated in the car for want of sufficient ventilation, in consequence of which she died the succeeding day.
The declaration contains five counts, the first of which charges in substance, that the mare and colt were shipped in a box car, and that it was necessary to prevent them from overheating to keep the doors and windows partly open during transportation, and that the defendant caused the doors and windows to be closed, and in consequence the mare became overheated, sickened and died, and the colt, deprived of proper nourishment, stunted.
Second count alleges that the car was hot, and that the defendant detained the mare and colt one hour in Peoria unnecessarily, whereby the mare became overheated, etc. The third count alleges detention unnecessarily on the road. Fourth and fifth counts allege failure to furnish proper car, and failure to use proper care in transporting. There was evidence on the part of the plaintiff below tending to show that the mare when received at Peoria was in a bad condition from being overheated while in the car of the defendant; that in this condition she was led to the river by the servant of appellee for the purpose of giving her water, after which she was taken to appellee's home; she appearing sick, they threw cold water upon her and sent for one Doctor Pries, a veterinary surgeon; he directed a course of treatment under which she improved during the day, but on the next morning she was removed to a farm of appellee about two miles distant, when she was taken worse and died during the day.
It is claimed by the appellant and evidence given tending to show such to be the fact, that the car was a proper one, properly ventilated, and that the servants of the company used proper care to keep the car in that condition, and that the overheating of the mare was in consequence of the extremely hot weather and the condition of the animal itself, and that the death of the mare resulted from improper treatment after she was delivered to appellee.
In this condition of the evidence the court gave to the jury in behalf of the plaintiff the following instruction:
Given: Upon the part of the plaintiff the court instructs the jury, that if they believe from the evidence that on July 5, A. D. 1881, the plaintiff delivered, or caused to be delivered, to the defendant, in good order and condition, for transportation by its said line of railway from Ottawa, in La Salle county, to the said city of Peoria, the said mare and colt mentioned in said declaration, that it then and there became the duty of the defendant to safely transport and deliver the said mare and colt at said Peoria, in good order and condition.
And if the jury further believe from the evidence that the defendant neglected its duty in that behalf, and that by reason of such negligence the said mare and colt were injured or destroyed without fault of the plaintiff, then the jury should find for the plaintiff, and fix his damages at such sum, not exceeding the amount claimed in the declaration, as they believe from the evidence to have been the value of the said mare at the time of her said death, and the amount of damage, if any, to said colt on account of the death of said mare.
The plaintiff recovered $433, and the defendant below appealed.
Mr. THOS. F. WITHROW and Mr. H. W. WELLS, for appellant; that appellee must offer proof to connect appellant with the cause of the mare's death, cited Lehman v. City of Brooklyn, 29 Barb. 234; P. C. & St. L. R. R. Co. v. McMillan, Rep. April 19, 1882, p. 506.
When a verdict is given contrary to the evidence, this court will grant a new trial: Lowry v. Orr, 1 Gilm. 70; Scott v. Blumb, 2 Gilm. 595; Culbertson v. City of Galena, 2 Gilm. 129; Gordon v. Crooks, 11 Ill. 142; Keaggy v. Hite, 12 Ill. 99; Baker v. Pritchett, 16 Ill. 66; Higgins v. Lee, 16 Ill. 495; Corgan v. Frew, 39 Ill. 31; Chase v. De Bolt, 2 Gilm. 371; Boyle v. Levings, 24 Ill. 223; Clement v. Bushway, 25 Ill. 200; C. & R. I. R. R. Co. v. McKean, 40 Ill. 218; Addems v. Suver, 89 Ill. 482; Summers v. Stark, 76 Ill. 208; Stickle v. Otto, 86 Ill. 161; Bell v. Gordon, 86 Ill. 501.
A carrier in the absence of negligence, is not liable for injuries which occur in consequence of the vitality of freight: M. C. & W. R. R. Co. v. McDonough, 21 Mich. 165; Rexford v. Smith, 52 N. H. 355; Craigin v. N. Y. C. R. R. Co. 51 N. Y. 63; Mynard v. Syracuse, etc., R. R. Co. 71 N. Y. 180; Penn. v. Buffalo & E. R. R. Co. 49 N. Y. 209; Clark v. R. & S. R. R. Co. 14 N. Y. 571; Kimball v. Buffalo & B. R. R. Co. 26 Vt. 242; Parrot v. Wells, 15 Wall. U. S. 524; O. & M. Ry. v. Dunbar, 20 Ill. 623; I. & St. L. Ry. v. Jurey, 8 Bradwell, 160.
If the practical effect of the conduct of the shipper is to cause an article of great value to resemble one of less value, whereby the carrier is misled, it is fraud: Warren v. W. I. Co. 5 Robt. N. Y. 490; Orange Co. Bank v. Brown, 9 Wend. 85; Pardee v. Drew, 25 Wend. 459; The Nitro Glycerine Case, 15 Wall. U. S. 524: Hayes v. Wells, Fargo & Co. 23 Cal. 185; Southern Ex. Co. v. Everett, 37 Ga. 688: C. & Aurora R. R. Co. v. Thompson, 19 Ill. 587; Oppenheim v. U. S. Ex. Co. 69 Ill. 62; C. & A. R. R. Co. v. Shea, 66 Ill. 471; Hutch. on Carriers, § 503; Story on Bailments, § 15; Am. Ex. Co. v. Perkins, 42 Ill. 459; C. & A. Ry. Co. v. Shea, 66 Ill. 471.
As to the effect of the printed notice, brought to the knowledge of appellee: Morrison v. Brown, 83 Ill. 562; Erie Ry. Co. v. Wilcox; 84 Ill. 239; R. S. Ill. 1853, Private Laws, p. 48.
A juror must be absolutely impartial and indifferent between the parties: 2 Blackstone Com. 363; Freeman v. The People, 4 Denio, 23; Hathaway v. Helmer, 25 Barb. 31; Harrisburg Bank v. Forster, 8 Watts, 306; The People v. Bodine, 1 Denio, 306; Davis v. Allen, 11 Pick. 469; State v. Anthony, 7 Ired. 234; Hinchman v. Clark, Coxe. 446; Bank v. Hart, 3 Conn. 491; Ga. R. R. Co. v. Hart, 60 Ga. 556.
If a party accepts a juror in ignorance of his disqualifications, a new trial will be granted: Burroughs v. State, 33 Ga. 408; Hawkins v. Andrews, 39 Ga. 118; State v. Groom, 10 Ia. 316; Pa. R. R. Co. v. Howard, 20 Mich. 18; Queen v. Justice of Hartsfordshire, 6 Q. B. 735; Queen v. Justice of Suffolk, 18 Q. B. 416.
A well-known usage and custom is presumed to enter into and form part of all contracts to which the custom applies: Lyon v. Culbertson, 83 Ill. 33; Bissell v. Ryan, 23 Ill. 566; Munn v. Burch, 25 Ill. 35; Wilson v. Bauman, 80 Ill. 495; U. S. Life Ins. Co. v. Advance Co. 80 Ill. 552.
Mr. GEORGE B. FOSTER, for appellee; that where a railroad company undertakes to transport live stock, it must furnish good and sufficient cars to carry the same, cited I. B. & W. Ry. Co. v. Strain, 81 Ill. 504; St. L. & S. E. Ry. Co. v. Dorman, 72 Ill. 504.
Where unreasonable delay in delivery is shown, carrier, to discharge itself, must show reasonable excuse, not the consequence of negligence: Galena v. Chicago U. R. R. Co. & Rae, 18 Ill. 488; Am. M. U. Ex. Co. v. Schier, 55 Ill. 141; I. C. R. R. Co. v. Waters, 41 Ill. 73.
If the cars were unfit or unsafe vehicles, carrier would be responsible, even although there was an agreement that it should not be liable therefor: Railroad Co. v. Pratt, 22 Wall. 123.
A common carrier can not limit by contract, its liability to deliver goods safely at their destination: I. & St. L. Ry. Co. v. Jurey, 8 Bradwell, 160.
Even if the acceptance of the property was special, burden is upon the carrier to show no negligence on its part: Shriver v. Sioux City R. R. Co. 24 Minn. 506; Bissell v. Price, 16 Ill. 408.
The liability of a carrier to deliver animals is not different from that where the delivery of merchandise is concerned: St. L. & S. E. R. R. Co. v. Dorman, 72 Ill. 504; I. B. & W. R. R. Co. v. Strain, 81 Ill. 504; C. & A. R. R. Co. v. Erickson, 91 Ill. 613.
If the damage is unconnected with the conduct or propensities of the animals, the carrier is liable: Clark v. R. S. R. R. Co. 14 N. Y. Rep. 571; Smith v. N. Y. C. R. R. Co. 29 Barb. 135; Golden v. Panama R. R. Co. 30 Penn. 246; Welsh v. P. & H. W. R. R. Co. 10 Ohio, 73.
As to a common carrier limiting its liability by notice: Fisk v. Chapman, 2 Kelly, 360; Cole v. Goodwin, 19 Wend. 254; Hollister v. Nowlan, 19 Wend. 235; Moses v. Boston & M. R. R. Co. 32 N. H. 523; N. J. Steam Mfg. Co. v. Merchant's Bank, 6 Howard, 344; 1 Smith's Leading Cases, 427-429.
As to a custom varying the liability of carrier: Cox v. Heisley, 19 Penn. 247; 1 Blackstone Com. 76.
A carrier is liable for the loss of a valuable package, although not informed of its value: Phillips v. Earle, 8 Pick. 182; Camden v. Baldauf, 16 Penn. 78.
Although evidence may have been conflicting, yet if it tends to sustain the issue, this court will not disturb it: Clifford v. Luhring, 69 Ill. 401; Reynolds v. Palmer, 70 Ill. 288; T. W. & W. R. R. Co. v. Moore, 77 Ill. 217; Wiggins Ferry Co. v. Higgins, 72 Ill. 515; Knightlinger v. Eagan, 75 Ill. 141.
The point made that the court erred in allowing the plaintiff to show the special qualities of the mare which gave her the value alleged, because no allegation of special value is contained in the declaration, we do not consider tenable.
The value being alleged...
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