Wald v. Pittsburgh, C., C. & St. L. R. Co.

• Decision Date: 13 June 1896
• Citation: 162 Ill. 545,44 N.E. 888
• Court: Illinois Supreme Court
• Parties: WALD v. PITTSBURGH, C., C. & ST. L. R. CO.

162 Ill. 545

44 N.E. 888

WALD

v.PITTSBURGH, C., C. & ST. L. R. CO.¹

Supreme Court of Illinois.

June 13, 1896.

Appeal from appellate court, First district.

Action by Lewis Wald against the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company. There was a judgment of the appellate court (60 Ill. App. 460) affirming a judgment for defendant, and plaintiff appeals. Reversed.Burnham & Baldwin, for appellant.

George Willard, for appellee.

This was a suit by appellant against appellee to recover the value of appellant's trunk and its contents, lost while in the possession of appellee as a common carrier between Cincinnati, Ohio, and New York City. On May 30, 1889, the plaintiff bought a ticket at Cincinnati for passage by the so-called ‘Limited Express Train’ over defendant's road to New York City. The limited express was a fast train, arriving in New York City two hours sooner than the regular day express. The tickets for this limited train consisted of two printed slips,-one, the railroad ticket, being green; the other, the special limited sleeping-car ticket, being purple. No passenger could travel by the limited without having both of these tickets. It was necessary to present these tickets at Cincinnati to some agent of the railroad company, in order to have a trunk checked to New York. Plaintiff did so present his tickets, and had his trunk checked at Cincinnati for New York. From Cincinnati to Pittsburgh passengers and their baggage for both the limited and day express traveled on the same train. This was the case with plaintiff and his baggage. Both left Cincinnati at the same time. At Pittsburgh the Cincinnati sleeper, carrying passengers for the limited train, was attached to the regular limited express, which had come from Chicago, and the Cincinnati baggage for the limited train was transferred at Pittsburgh from the baggage car of the Cincinnati express to the baggage car of the limited train. In order to have baggage intended for the limited express so transferred at Pittsburgh, it was the practice of the railroad company to attach to each trunk at Cincinnati a white pasteboard tag in addition to the regular brass check, and, unless such a white tag had been so attached,a trunk remained on the baggage car from Cincinnati, and went through by the day express from Pittsburgh to New York. In the present case no such white tag had been attached to plaintiff's trunk at Cincinnati, and, as a result, while plaintiff's car was transferred at Pittsburgh to the limited express, his trunk remained on the day express, which followed along some time after the limited. This day express, carrying plaintiff's baggage, was overtaken by the flood at Johnstown, Pa., and the baggage car, with the entire contents, including plaintiff's trunk, was lost. The limited express on which plaintiff traveled passed beyond the point of danger before the flood came, and was uninjured. There was some conflict in the testimony as to whether or not it was defendant's fault that the white tag was not placed on plaintiff's trunk at Cincinnati. It is agreed ‘that there was no negligence in the management of the train, or in the care of the baggage in question while on the train.’ On the trial of the case before a jury, at the close of all the evidence the court instructed the jury, as requested by defendant, that plaintiff was not entitled to recover, and that a verdict should be returned for defendant. On the verdict so returned judgment was entered, and this judgment was affirmed by the appellate court. The case is brought to this court under a certificate of importance.

In their opinion deciding this case the appellate court thus describe the flood which destroyed the baggage car containing appellant's trunk, as such description appears from the testimony to be found in the record: ‘The flood that was encountered far exceeded what had ever before been known in the region where it occurred. There was a great fall of rain, lasting many hours, which raised the river to a height never before known, and caused washouts and landslides to an extent necessitating the train carrying the trunk to come to a stand. As the stream rose, the train was shifted from place to place, to keep it in safety, and, because of washouts ahead and behind, it could not proceed far, either in the direction of returning or advancing. After remaining in this position for several hours, the South Fork dam, which was located on a tributary stream a few miles above where the train stood, and formed a reservoir there at a very much greater elevation, broke, and let into the narrow valley what witnesses described as a great wall or wave of water from twenty to thirty feet high. Of course everything was swept before it. Trees, houses, railroad tracks, cars and engines, iron bridges, and stone viaducts were carried before its force, and so complete was the devastation wrought, it was testified in the case, that it cost the railroad company $600,000 to put its roadbed, tracks, and bridges, within a distance approximating seven miles, in the condition they were in before the flood. Only those persons who were on the alert and on the hillsides escaped death. The engineer of the locomotiveto the train in question escaped only by fleeing up the hillside. His locomotive was turned over, and the baggage car which was coupled to it, and in which plaintiff's trunk was being carried, was swept away, and it was testified that the car was never afterwards found in recognizable form.’

MAGRUDER, C. J. (after stating the facts).

Appellee's contention is that the flood by reason of which appellant's baggage was lost was an act of God, and that it is not liable for such loss under the well-established rule that ‘a common carrier, liable as an insurer for the property intrusted to him for the purpose of transportation, is, nevertheless, excused from responsibility for losses which are caused by an act of God.’ 1 Am. & Eng. Enc. Law (2d Ed.) p. 592. It is appellant's contention that the railroad company should, by placing a white tag on his trunk at Cincinnati, or by some other means, have provided that it should travel with him by the same train throughout the journey; that it did not do so; that, as a result of its negligence in so failing properly to check his trunk, it was separated from him during the journey, and was lost; and that, even if this flood was an act of God, yet the appellee's negligence in failing properly to check the trunk concurred with the act of God, and thereby made appellee liable for the resulting loss or damage.

1. The Johnstown flood, as it is called, by reason of which appellant's baggage was lost, was an act of God. In Long v. Railroad Co., 147 Pa. St. 343, 23 Atl. 459, which was an action brought to recover the value of two trunks and their contents delivered to the Pennsylvania Railroad Company in Cincinnati for transportation to Washington, and where it appears that the trunks lost were contained in the baggage car of the day express which was destroyed by the Johnstown flood, so called, on May 31, 1889, the supreme court of Pennsylvania held, upon substantially the same evidence which is found in the record in the case at bar, that said flood was ‘an inevitable accident, properly described as actus Dei.’ In the Long Case, however, there was no question as to whether or not the goods lost were upon the right train; that is to say, the point was not there made that the personal baggage of the passenger had been shipped upon a different train from that on which the passenger took passage.

2. There is some conflict among the authorities as to the liability of a common carrier where the loss of goods in its or his possession is due, not solely and only to an act of God, but to an act of God combined with the negligence of the carrier. Many cases hold-and such seems to be the tendency of the decisions in this state-that a common carrier is not exempt from liability for a loss which takes place because of an act of God, if such carrier has been guilty of any previous negligence or misconduct which brings the property in contact with the destructive force of the actus Dei, or unnecessarily exposes it thereto. A loss or injury is due to the act of God when it is occasioned exclusively by natural causes, such as could not be prevented by human care, skill, and foresight; and where property committed to a common carrier is brought by the negligence of the carrier under the operation of natural causes that work its destruction, or is, by the negligence of the carrier, exposed to such cause of loss, the carrier is responsible. ‘It is universally agreed that, if the damage is caused by the concurringforce of the defendant's...