The Wabash v. Black

• Decision Date: 31 May 1882
• Citation: 11 Bradw. 465,11 Ill.App. 465
• Parties: THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANYv.ROBERT BLACK.
• Court: United States Appellate Court of Illinois

11 Ill.App. 465

11 Bradw. 465

THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY

v.ROBERT BLACK.

Appellate Court of Illinois, Third District.

May Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of De Witt county; the Hon. A. G. BURR, Judge, presiding. Opinion filed October 24, 1882.

Messrs. DONAHUE & HARRIS, and Messrs. BROWN, KIRBY & RUSSELL, for appellant; that the provision as to notice of claim for damages is a reasonable one and the parties were competent to make it, cited Rice v. K. P. Ry. Co. 63 Mo. 318; Goggins v. K. P. Ry. Co. 12 Kan. 416; Express Co. v. Caldwell, 21 Wall. 264; Oxley v. St. L. K. C. & N. Ry. Co. 65 Mo. 629; Bankard v. B. & O. R. R. Co. 34 Md. 197; Wolf v. W. U. Tel. Co. 62 Pa. St. 83.

Plaintiff is chargeable with negligence if he failed to read the contract: C. B. & Q. R. R. Co. v. Hale, 2 Bradwell, 160; Grace v. Adams, 100 Mass. 505.

Common carriers have a right to limit their liability except for gross negligence: Erie Ry. Co. v. Wilcox, 84 Ill. 239; Mer. Des. Co. v. Bolles, 80 Ill. 473; Arnold v. I. C. R. R. Co. 83 Ill. 273; Hutchinson on Carriers, § 218.

There is a distinction in the carrier's liability between carrying live stock and inanimate freight: I. & St. L. R. R. Co. v. Jutgen, 10 Bradwell, 295; I. & St. L. R. R. Co. v. Jury, 8 Bradwell, 160.

Messrs. MOORE & WARNER, for appellee; that a common carrier can not limit his common law liability by special contract, cited Addison on Torts, 706; Wharton on Negligence, 549; Cooley on Torts, 640; Lawson on Carriers, 24; R. R. Co. v. Lockwood, 17 Wall. 357; Bank of Ky. v. Adams Ex. Co. 3 Otto, 174; Ill. Cent. R. R. Co. v. Waters, 41 Ill. 73; Oppenheimer v. U. S. Ex. Co. 69 Ill. 62; Erie R. R. Co. v. Wilcox, 84 Ill. 239; Boscowitz v. Adams Ex. Co. 93 Ill. 523; Ex. Co. v. Kountz, 8 Wall. 342; York Co. v. C. R. R. Co. 3 Wall. 107; Kuter v. M. C. R. R. Co. 1 Biss. 35; York Mfg. Co. v. M. C. R. R. Co. 1 Biss. 377; Fuller v. Talbot, 23 Ill. 357; West. Trans. Co. v. Newhall, 24 Ill. 466; St. L. A. & T. H. R. R. Co. v. Montgomery, 39 Ill. 335; Ills. Cent. R. R. Co. v. Owens, 53 Ill. 391; Ill. Cent. R. R. Co. v. McClellan, 54 Ill. 58; C. & A. R. R. Co. v. Shea, 66 Ill. 471; C. & N. W. R. R. Co. v. Sawyer, 69 Ill. 285; T. W. & W. R. R. Co. v. Thompson, 71 Ill. 434; Mer. Trans. Co. v. Kohn, 76 Ill. 520; T. W. & W. R. R. Co. v. Hamilton, 76 Ill. 393; M. C. R. R. Co. v. Curtis, 80 Ill. 324.

The action being in case, the defendant might, under a plea of not guilty, prove any matter in defense, even though it should be in confession and avoidance: Stephens on Pleading, 162; Champaign v. McMurry, 76 Ill. 353; McCord v. Bank of Chicago, 84 Ill. 49; Quincy v. Warfield, 25 Ill. 317; Wiggin Ferry Co. v. Blakeman, 54 Ill. 201; Manny v. Rixford, 44 Ill. 129; Zirkel v. Joliet Opera House Co. 79 Ill. 334.

It is the duty of a carrier to furnish suitable cars for the transportation of live stock, and skillful employes to manage the trains: Lawson on Carriers, 23; G. C. & U. R. R. Co. v. Rae, 18 Ill. 488; Wharton on Negligence, § 595; Cooley on Torts, 641; Fuller v. Talbot, 23 Ill. 357; I. B. & W. R. R. Co. v. Strain, 81 Ill. 504; Erie Ry. Co. v. Wilcox, 84 Ill. 239; R. R. Co. v. Lockwood, 17 Wall. 362; R. R. Co. v. Pratt, 22 Wall. 123.

A carrier of live stock is bound to deliver it at the place of consignment within a reasonable time: Sangamon v. M. R. Co. 14 Ill. 160; Priestly v. M. J. & C. R. R. Co. 26 Ill. 205; Ill. Cent. R. R. Co. v. Waters, 41 Ill. 73; G. W. R. R. Co. v. Burns, 60 Ill. 284; T. W. & W. R. R. Co. v. Lockhart, 71 Ill. 627; Mer. Trans. Co. v. Kohn, 76 Ill. 520; M. C. R. R. Co. v. Curtis, 80 Ill. 324.

There are no degrees of negligence in the case of common carriers: Phil. R. R. Co. v. Derby, 14 How. 468; Steamboat v. King, 16 How. 469; R. R. Co. v. Lockwood, 17 Wall. 357.

The question of negligence having been submitted to the jury, their verdict will not be disturbed unless it appears that it was clearly against the evidence: Plummer v. Rigdon, 78 Ill. 222; Miller v. Balthasser, 78 Ill. 302; Hayes v. Houston, 86 Ill. 487; Stickle v. Otto, 86 Ill. 161; Howitt v. Estelle, 92 Ill. 218; Lewis v. Lewis, 92 Ill. 237.

HIGBEE, J.

This was an action on the case brought by appellee against appellant as a common carrier for negligence in failing to deliver within a reasonable time at their place of destination, ninety-five head of fat cattle, shipped over appellant's road from Midland City to Chicago, on the 6th day of July, 1881.

Appellant filed the general issue to the declaration, and, in addition, a number of special pleas setting up a contract between the parties, under which the shipment was alleged to have been made, and averring divers breaches thereof, as a defense to the action.

The special pleas were demurred to by appellant and the demurrer sustained by the court, and a trial had by a jury resulting in a verdict and judgment for appellee, from which an appeal is prosecuted to this court and numerous errors assigned.

It is first contended by appellant that the court erred in sustaining appellee's demurrer to its special pleas. In this form of action the special pleas were not necessary, and they were obnoxious to a special demurrer as amounting to the general issue; the same matters of defense set up in them were given in evidence on the trial under the general issue, and no injury resulted to appellant by sustaining the demurrer.

On the trial of the cause it appeared that the cattle were shipped under a special agreement in writing, signed by the parties in duplicate at the time of the shipment, one copy of which was retained by each party, in and by which it was stipulated and agreed, among other things, that in consideration of a reduced rate to be paid by the shipper to the carrier, the claim which might accrue to the shipper for damages should not be paid by appellants, or sued for in any court unless a claim for the loss should be made in writing and sworn to and delivered to the general freight agent of said company, at his office in St. Louis within five days from the time said stock was removed from the cars.

It was admitted by appellee that the claim in writing was not furnished to the freight agent as required by the agreement, nor was any notice of any claim for damages to said stock given him within five days, nor at any time before the commencement of this suit.

It is insisted by appellee that this contract is not binding on him because he did not read or understand its contents before signing. The evidence shows that the regular rate per car for shipping his stock was $33, but that in consideration of signing the contract he was charged only $25 per car, and given a pass to accompany his stock.

Appellee himself testified that he had been engaged in shipping stock for about ten years, and had always before signed such papers, but did not know their contents. He could read writing and signed the contract, but did not read it. It assigned after the stock was loaded.

He knew when he signed the contract that it was in reference to the shipment of his stock, and if he did not know its contents it was because he did not choose to read it and inform himself. He can not relieve himself from liability by showing, unless on proof of fraud or coercion, that he was ignorant of its contents. If it were otherwise, a party, by declining to inform himself of what a contract contains, might reap its benefits and yet reject its burdens. Express Co. v. Caldwell, 21 Wall. 264; Lee v. R. R. Co. 5 H. & N. 867; and this rule has been applied to cases of contracts, not otherwise against the policy of the law, relieving carriers from liability. Wharton on Law of Negligence, Sec. 587, and authorities there cited.

It is claimed by appellee that this contract is contrary to public policy and therefore void. The duty of a common carrier is to transport and deliver safely. It is also provided by statute in this State that a railroad company shall not limit its common law liability safely to deliver property received by it to be transported by any stipulation or limitation expressed in the receipt given for the safe delivery of such property.

It is not improbable that some of the exemptions contained in this contract may conflict with these well known rules of law, and be void; but the only one we are now considering, neither exempts appellant from liability for the negligence of its servants, nor does it, even if the statute applies to contracts, limit its common law liability to safely deliver property intrusted to it for carriage.

The only object of this provision was to insure notice without delay, of the damage, and the claim the shipper intends to make, and thereby enable the carrier to investigate it while the evidence is within reach and easy to be had. Such provisions to be valid must be reasonable and such as can be readily complied with.

In the case at bar, appellee accompanied his stock to Chicago, and if it was damaged while in possession of the carrier he knew it, and what was there unreasonable in requiring him to give notice of the injury and his claim for damages?

Such provisions have frequently been before the courts of this country and Great Britain, and with few exceptions have been held valid. In Lewis v. The Great Western Railway Co. 5 Hurlstone & Norman, 867, the action was against a common carrier, and the court sustained as reasonable and binding the stipulation in a bill of lading “that no claim for deficiency, damage or detention would be allowed unless made within three days after the delivery of the goods.” Chief Baron Pollock said: “The company wishing to guard against any allegations of neglect in the delivery of the goods so confided to them, require that when the goods are delivered they shall be promptly examined, and complaint at once made if there is occasion for it. Such a condition is perfectly...