80 Ill. App. 475 | Ill. App. Ct. | 1899
delivered the opinion of the court.
The plaintiff was a messenger for the American Express Company, on the defendant’s line of road between Chicago and Sioux City, Iowa. On January 15, 1896, the passenger train on which he was riding in the baggage car, in which the express matter he had in charge was being carried, ran into the rear corner of the caboose of a freight train which had been partly pulled off upon a switch or side track in order to permit the passenger train which plaintiff was riding, to pass. The rear end, only, of the caboose projected upon the track of the passenger- train, and a piece of one of its timbers broke into the express car and hit the plaintiff and caused the injuries of which he complains. - -
It appeared in evidence that the first cause of the caboose being left in its dangerous place, was the breaking of a link in the chain of freight cars that were being hauled off upon the side track, causing the freight train to separate, and leaving its extreme end—the caboose—projecting in part upon the main track..
Whether or not the defendant was liable for • negligence in respects of the, broken- link, and the consequent collision, will not be discussed at length by us at this time, although we have considered the case in that aspect.. The evidence showed, without controversy, that the defect in the link which caused it to break was a latent one, beyond discovery by the exercise of all reasonable diligence; but whether, after the break, there was not time enough before the collision, in the exercise of proper diligence by defendant’s servants, to have got the caboose clear of the main track, is not so certain.
We prefer to place our decision upon the point that caused the trial court to take the case from the jury, by a peremptory- instruction to find the defendant not guilty.
That point is that, whether there was legal negligence by the defendant or not, the plaintiff had by special contract, previously entered into, released, the defendant from all liability in the premises.
We will not particularly enter upon the contention of plaintiff that such contract of release was improperly admitted in evidence under the condition of the pleadings at the time of the trial. It is enough for the'purpose of getting directly at the main question in the case, which demands early decision because not only of what is involved in this case but collaterally, to hold, without much discussion, that the release was admissible.
. The plaintiff had testified to his employment with the express company, that he knew the terms of his employ-' ment and that they were set forth in the writing identified by him as bearing his signature. The writing was then, we think, clearly admissible under the general issue, in order to show the terms and conditions of plaintiff’s employment by the express company, and his relation to the defendant at the time of the accident.
The relationship of express companies to railroad companies, over whose lines express matter is carried under special .contracts, is well set forth in Express Cases, 117 U. S. 1, to which we refer rather than quote from, and the doctrine there upheld is, that special contracts between such companies, giving special and exclusive privileges to express companies, are lawful.
It was by virtue of the contract between the defendant and the express company that the plaintiff was upon the car when he was injured. He was not in the strict sense a passenger. Hor was the defendant in the strict sense a common carrier as to him. His being carried from one end of the express route to the other, was for the» purpose, and none other, of handling and caring for the property of his employer, the express company, which was being transported under the terms of the special contract between the express company and the defendant.
It was not the duty of the defendant, as a common carrier, to carry for the express company its goods, or its messenger in charge of them, in the car in question. As a common carrier the defendant was not compelled to grant that right to the express company. It was only because of the special contract that such rights, superior to the rights of the public, were conferred, and being upon the car by virtue of such contract rights, the plaintiff was there subject to the burdens of the contract. His rights were those of his employer, the express company, and no greater. He could not accept the right to'be there under the contract, and reject the conditions under which the contract gave the right.
Had the defendant occupied in the premises the position of performing a public or quasi public duty to the plaintiff, such as it would have held to him if he were being carried as an ordinary passenger, we understand the law would not have permitted him to contract away his right of recourse for damages for the defendant’s negligence, and in no case could a common carrier, even by express contract, in Illinois, exempt itself from liability resulting from the gross negligence or willful misconduct committed by itself or its servants. C. & N. W. Ry. Co. v. Chapman, 133 Ill. 96; I. C. R. R. Co. v. Read, 37 Ill. 484.
But, under the evidence, there does not arise in this case any question of gross or willful negligence.
As already said, the defendant was not, as to the plaintiff or his employer, in the discharge of the public duties required of it as a common carrier, and the plaintiff might, therefore, as he did, contract to assume the risks of the trip himself, and release the defendant from all liability on account of injuries to him.
The plaintiff in his contract with the express company ratified, as his own, and made a part of such contract, the contract between the express company and the defendant, and agreed to be bound thereby. He was bound, therefore, to know that the express company, and himself as its representative, had a right to ride in the car only by special license, which he could not accept and at the same time continue to hold defendant liable for injuries that might befall him.
It is not pretended that what we have said constitutes an exhaustive or thorough opinion upon the question. It is one not yet decided by our Supreme Court, and the little we have said is mainly, though imperfectly, taken from opinions of the Supreme Court of Indiana, which commend themselves to us by the reason and authority there shown.
A reference to Louisville, N. A. & C. Ry. Co. v. Keefer, 146 Ind. 21, and Pittsburgh, C., C. & St. L. Ry. Co. v. Mahoney, 148 Ind. 196, where similar contracts were involved and able discussion is had, will serve the purposes of counsel in this case, and the profession generally, as well as could be done by an exhaustive opinion here.
Eumerous minor questions are argued, concerning which we discover nothing amounting to reversible error or requiring further comment.
The judgment of the Superior Court is affirmed.