42 Ill. 474 | Ill. | 1867
delivered the opinion of the Court:
This was an action on the case, brought in the DeWitt Circuit Court by Parker S. Adams against the Illinois Central Railroad Company, for negligence in transporting certain car loads of live hogs from Clinton to Chicago, by reason whereof a number of the hogs died.
The cause was tried by a jury, and a verdict for the plaintiff for $505.12. A motion for a new trial was made and overruled, and exception taken. Exceptions were also taken to the judgment of the court refusing certain instructions asked by the defendant, in modifying others and in giving instructions in behalf of the plaintiff. The case is brought here by appeal.
The declaration, as filed, contained four counts, to the first three a demurrer was sustained, and the trial was had upon the fourth count, in which the averment was, that the defendants were guilty of gross carelessness in not watering the hogs, by means whereof they were injured to the amount of $1,000.
Various errors are assigned, but the controversy depends principally on the instructions and the nature of the contract entered into by the parties.
It is insisted by the appellants, that, by the contract of shipping, the company was not liable for any loss except such as might result from a collision of the train, or when the cars were thrown from the track in course of transportation, and that the hogs were to be fed and watered by the owner and to be at his risk in all respects except as specified in the form of the contract or receipt in the hands of the agent.
The phrase, “ feeding and watering,” as used in the contract, has reference alone, as we understand the contract, to the ordinary sustenance such animals require in the course of transportation, while the negligence complained of, and for which the railroad company is sought to be charged, is the application of water externally to hogs confined in cars, causing them to become much heated, and from which speedy death ensues if they are not promptly relieved by this application.
The whole case turns upon the fact of the liability of the company to apply this water, and, failing to do so on request, does it amount to such gross negligence against which it is not in the power of the company to stipulate ?
The proof is clear that it is the custom of the railroad agents to make this application of water, and it is most reasonable and just that it should be their duty, for their employers own the trains, the tanks and the water within them, and have entire and exclusive control of all the movements and stoppages of the trains, with which no shipper can, in the slightest degree, interfere. Were it not so, who can estimate the derangement to which trains would be subjected, did every shipper control its movements,— did he have the power to stop it for any purpose or appropriate water at an inconvenient or improper station when there might be but a scanty supply not in excess of the necessities of the boilers ? Good policy and a due regard to the operations of the trains, require that this duty of watering live hogs in the manner described in the evidence should devolve upon those who manage the trains, and not upon the shippers of such stock. The contract referred to in the declaration had no reference to this matter, but to their ordinary feeding and watering, which duty properly belonged to the owner.
If, then, it was gross negligence in the conductor of the train carrying these hogs, in refusing to apply water to them when requested at Bloomington or at Normal, at which latter place water was convenient and abundant, the company could not contract against that. This court said, in the case of Ill. Central R. R. Co. v. Crabtree & Morrison, 19 Ill. 139, that, although a railroad company might protect itself by contract against certain risks assumed by common carriers and belonging to their vocation, it was contrary to good morals and public policy that they should be allowed to stipulate against their own gross negligence, or that of their employees, or their willful default.
The jury have found there was gross negligence in this case. It is true, the testimony was contradictory on this point, but the jury have given the most credit to Shaw, the witness for plaintiff, who testified to his own interference with Perigo, the conductor, when the train was at rest at Bloomington, and also when it was on the switch at Normal, and at both places distinctly informed the conductor of the suffering condition of the hogs for the want of water, and of the personal appeal of the owner to the same conductor to apply the water. Perigo, the conductor, denied all this, and it was exclusively for the jury to weigh the testimony of both, and give the credit where they thought it most properly belonged, and, with their decision in this regard, this court is not permitted to interfere. The testimony of Shaw fully establishes gross negligence of a willful character, and inexcusable in any light in which it can be regarded. If excusable at Bloomington, on account of a scarcity of water or a total want of a supply there, it was not so at Normal, where the train rested long enough to have performed the operation more than once if needed. But the appellant’s counsel insists, that it was the gross neglect of appellee in not watering the hogs at Clinton, after driving them more than four miles, and suffering them to remain in the stock yard there without water, from ten o’clock in the forenoon until four or five o’clock in the afternoon, when they were placed on the cars.
Most of the witnesses say it would have been a good thing to have watered the hogs at Clinton, but no one attributes the deaths and injuries to this omission, nor does there seem.to have been any necessity for watering them there before placing them on the cars. It was not water internally the animals needed; and, as it was a wet time at which they were driven to Clinton, and several branches of water crossed on the route thither, it is reasonable to suppose they had their fill of that element, and it was only when confined in the cars that they suffered for the want of it, and the conductor was deaf to every appeal made to him to supply water until the train had reached El Paso, a distance of more than forty miles from Clinton, and then denied water, until the station agent at that place directed the conductor to do his duty by supplying water. At this point the hogs were transferred to the cars going to Chicago, and Perigo’s train proceeded on the main track. The counsel for appellant insists, it was not the duty of this train to engage in switching, or any thing else, but to coal and water, and hitch on such cars as were to go north by his train.
This being so, then, most imperative and overwhelming was the duty of this conductor to apply the water at Normal, when he was requested by the owner to do it, and the animals then in a suffering and dying condition. He knew he could not take the time at El Paso. He knew he had other duties there which would engage his train, and, when he arrived there, it was only by the interference of the station agent he made any movement in the direction desired. If the jury believed the statement of Shaw, a case of recklessness, of gross negligence, by conductor Perigo, was fully established.
The views here presented fully dispose of all the objections taken to the instructions.
Those which were refused, as ashed by appellant, were substantially embraced in those given.
Perceiving no error in the record, the judgment must be affirmed.
Judgment affirmed.
