Wabash R. Co. v. Brown

• Decision Date: 16 June 1894
• Citation: 39 N.E. 273,152 Ill. 484
• Parties: WABASH R. CO. v. BROWN et al.
• Court: Illinois Supreme Court

152 Ill. 484

39 N.E. 273

WABASH R. CO.

v.BROWN et al.¹

Supreme Court of Illinois.

June 16, 1894.

Appeal from appellate court, Third district.

Action on the case by Lloyd W. Brown and E. W. Brown against the Wabash Railroad Company. Plaintiffs obtained judgment, which was affirmed by the appellate court. 51 Ill. App. 656. Defendant appeals. Affirmed.Geo. B. Burnett and Geo. S. Grover, for appellant.

Edward L. McDonald and James N. Brown, for appellees.

The appellees, in April, 1892, having purchased in Chicago a number of high-bred cattle for breeding purposes, shipped the same from Chicago to their farm near New Berlin, on the line of the appellant's railroad. The train was made up in Chicago about dark on the evening of the day they were so shipped. The car was an ordinary stock car in which the cattle were shipped, the only car that had live stock in it in the train, and was placed in a train of some 26 cars, the third from the engine. The cattle had hay to eat, and enough more to bed them. When not far from Springfield, at the Illinois Central crossing, one of the appellees saw the train men running to the front of the train, and, supposing something was wrong, ran over the train, and when he came to his car found the engineer and fireman had just extinguished a fire in the car. The fire was in the northwest corner of the car, which was going west at the time, showing the fire to have started in the end of the car next to the engine. It is claimed there was nothing in the car to start a fire, and the engineer and fireman had just put the fire out by pouring water on it, obtaining the water from the ditch alongside of the railroad, and carrying the water in buckets from the ditch. Of the five head of fine cattle in the car none were injured save the cow in controversy, the Fourth Duchess of Hillsdale, and she was badly burned, so much that she is practically of no value. The proof shows that the value of the cow was $850. Only two days before she was sold at public auction for that sum. The jury found by their verdict that the damages of appellees was $650.

It is provided in the contract, among other things, that in consideration of a reduced rate of freight: ‘Tenth. In consideration of the rate aforesaid, it is further agreed that no claim for damages which may accrue to the party of the second part under his contract shall be allowed or paid by the party of the first part, or sued for in any court by the party of the second part unless a claim for such loss or damage shall be made in writing verified by the affidavit of the party of the second part or his or their agent, and delivered to the general freight agent of the party of the first part at his office in the city of St. Louis within five (5) days from the time said stock is removed from said cars. Eleventh. It is agreed that neither the party of the first part nor any connecting line shall be liable for the sum of more than one hundred dollars on account of loss or injury of any one horse or other animal received or carried by the party of the first part under this contract.’ On the margin of the contract is written in red ink the following: ‘My special attention has been directed to clause No. 11 limiting the liability in case of accident, and to which condition I knowingly subscribe.’ The declaration contains two counts, and charges negligence on the part of appellant in permitting sparks and brands of fire to be emitted from its engine, and in placing the car in such close proximity to the engine that the sparks and brands of fire ignited with the bedding in the car, etc. It appears from the evidence that the reduced rate referred to in the contract was a rate of 12 6/10 cents per hundredweight at which cattle were taken, and that the regular rate charged by appellant for the transportation of that number of cattle of the value of the cattle in question, from Chicago to Berlin, without the execution of the special contract, was 70 1/2 cents per hundred. E. W. Brown, one of the appellees, testifies he only knew of one rate,-that of car-load lots; and that being governed by the size of the car. In all his shipments he never had heard of any other, and ordered a car without saying anything about the rate; and John Connors, the agent at Chicago, on cross-examination states that the only rate talked over by him, as agent of appellant, and Mr. Brown, was the carload rate, depending on its being a 30-foot or a 34-foot car, and Mr. Brown took the 34-foot car. It appears the only knowledge appellees had of rates was obtained from Mr. Connors, the agent; and it would appear from the evidence that Mr. Brown shipped at the rate mentioned, knowing no other, and that the company had a higher rate, which was much more than the regular rate, to which appellees' attention was not called. It is shown by the evidence that the appellees did not learn the rate until arriving at their destination. A day or two after the injury, one of appellees addressed a letter to the claim agent of the company, which was delivered to the station agent of the company, to be forwarded, in which letter it was stated that the injury had occurred, but the damage could not then be determined, and further communication would be given. On the 12th of October appellees again wrote the claim agent, stating the damage. That agent, on October 13th, acknowledge receipt of the letter, and stated it had been forwarded to the freight claim agent, who had adjustment of such claims. On the 18th of October the freight claim agent wrote appellees, saying the letter of the 12th had been referred to the legal department for advice as to their liability, and, when returned, would communicate further. Appellees recovered a judgment for $650 and costs, which was affirmed by the appellate court. On the trial in the county court appellant asked the court to instruct the jury: That there was no evidence before the jury from which they would be authorized to find that the injury complained of was occasioned by or through the gross negligence of defendant; that upon the pleadings and evidence the plaintiffs were entitled to recover only the sum of $100, as provided in the eleventh clause of the contract; that unless it had been shown that plaintiffs made a claim in writing for the loss, verified by affidavit, and...