38 Ill. 354 | Ill. | 1865
delivered the opinion of the Court:
It is insisted in favor of a reversal in this case, that the cotton, at the time of its destruction, was not in the possession of the railroad company, either as a common carrier or for safe-keeping; and that the court below erred in rejecting the evidence of the usage of the company in their business at Cairo. It appears, that according to the mode in which this company does business at Cairo, when warehousemen have cotton to ship by rail, they apply to the company for the requisite number of cars, and they are sent on the side track of the company to the warehouse, and tlie shipper there loads the cotton upon the cars, makes out a manifest, and leave's it with the agent of the company, who has the bales counted, and if found to be correct, a bill of lading is signed, and the company send a locomotive and remove the cars thus loaded and place them in the train destined for the point to which the shipment is made.
The side track and the cars belong to the company, and are under their exclusive control. And there is no question, that the company placed this car at a point opposite the wharf-boat on which the cotton was stored, for the express purpose of having it transferred from the boat to the car, that they might transport it to the point desired by the shipper. The company had unquestionably the exclusive use and control of their road, side tracks, and freight cars ; no use could be made of them without the consent of the company. So long as a car remained on their road or sidetrack, it was under their control and, necessarily,in their possession. They had the right to permit their cars to standout the point at which this one was placed. The company, at any moment, at least after 'the car was loaded, had the unquestioned right to remove it to any other part of their road, but the commission merchant had no such right, even if he had possessed the means. He simply had the right to load the cotton on the car.
The wharf-boat, on the contrary, with its contents, was in the possession of the commission men, and the cotton so continued until it was placed in the car. It then passed into the possession of the company as effectually as if it had been delivered in their warehouse. They substituted their car for their warehouse, no doubt for the mutual convenience of all parties. And this too with the assent of the company, to promote their interest, in the prosecution of the business for which it was created.
If tills was a box car the company had the right as soon as the cotton was placed in it, to have closed and locked it. Or, if an open car, they had an equal right to have secured the cotton, and any person interfering with it would have been a trespasser, and the company could have recovered damages for any injury thus perpetrated. Bo difference is perceived in receiving freight on the platform of their, depot, and into their cars, at any place on their road or side track. Or whether it is placed there by their own employees or by other persons, so it is done with the assent of the company.
It is not the mere signing a bill of lading which transfers the possession of freight to the" company, but it is the evidence that they have received possession. Their possession may be shown by any other legitimate evidence. The liability of the common carrier is fixed by accepting the property to be transported. If, however, goods are placed on his cart, boat or car, without his knowledge or acceptance, or that of his agent, he is not liable. Angell on the Law of Carriers, Sec. 140. If the owner or person having the custody of the goods to be shipped, never parts with their possession, or does not place them under the control of the carrier, there is no bailment, and consequently no liability incurred. Ibid. But in this case the company, by their acts, accepted the trust. The cotton was not placed in the car without their knowledge, but it was with their express assent. Had the employees of Williamson, Haynes & Co.,' placed the cotton on the platform of the depot, with the assent of the company, to be transported, no one would doubt their liability, and yet in principle no difference is perceived.
According to the current of modern decisions, it is competent for a common carrier, by rail, to limit his common law liability, by express contract. It was held in the case of the llinois Central Railroad Company v. Morrison, 19 Ill. 136, after a careful review of the adjudged cases, that railroad companies could restrict their liability by special agreement, they still being held responsible for gross negligence or willful misfeasance. But in that ease the rule was restricted to a special contract, nor are we aware that any well considered i case has carried it farther. And we have no disposition to do' so unless compelled by authority. But this rule of law can have no application to this case, because there is no pretense that there was any special agreement, restricting the liability of this company. Their liability can not be limited by showing that it was the usage of the road to embrace in all bills of lading for the shipment of cotton, that the company should not be liable for losses by fire. There was an offer to prove that such had been the usage of the company, and that it was known to shippers. If this had appeared it would not have availed, as nothing but a special agreement could have that effect. Western Trans. Company v. Newhall, 24 Ill. 466. Even to permit it to the extent announced in the case referred to, is a relaxation of the ancient common law, which prevented any restriction of the carrier’s liability even by contract.
But to merely show a loose usage for an indefinite period, limited to a few persons in one particular locality to change the carrier’s duty, is not sanctioned by either the British or American decisions.
The question of diligence is one of-fact, for determination by the jury. And in this case it was fairly presented for their consideration, and we think the evidence warranted the conclusion at which they arrived. Upon a careful examination of this record, we are unable to perceive any error for which the judgment should be reversed, and it must be affirmed.
Judgment affirmed.
