16 Ill. App. 425 | Ill. App. Ct. | 1885
One of the questions at the trial was, whether the plaintiffs were bound by the terms and conditions of the bill of lading, and on that question the court gave to the jury the following instruction;
“ The court instructs the jury that the printed notice printed upon the receipt of the terms and conditions upon which the defendant received and carried the goods in question is not binding upon the plaintiff, unless the jury find from the evidence that his attention was particularly called to that notice when he took the receipt, and that he expressly assented to the terms and conditions therein contained. The fact alone that the plaintiff accepted the receipt is no evidence that he assented to the terms of said notice.”
A common carrier of property has an undoubted right to limit, to a certain extent, his common law liability, by an express contract with the shipper, but the rule is too well settled to admit of discussion that a clause in a receipt or bill of lading, exempting the carrier from such liability, is not binding on the shipper unless the latter knew of and assented to such exemption. Whether the shipper, however, knew of the terms and conditions of the bill of lading, and whether he assented thereto, are questions of fact to be determined by the jury, from the evidence.
In attempting to prove the shipper’s knowledge of or assent to the terms of the bill of lading, the carrier is not limited to evidence of any one particular fact, hut may prove all the circumstances surrounding the transaction which have any legitimate tendency to establish the shipper’s knowledge or assent. Such facts may be shown, it is true, by direct evidence of express notice and assent at the time, but that is by no means the only evidence by which they may be established. They may be shown, presumptively, by evidence of a long course of previous dealings between the parties of a like character, or by previous proposals by the shipper to the carrier as to the terms and conditions upon which the shipment should be made. Indeed, it would be difficult to enumerate all the facts and circumstances which might have a tendency to prove the shipper’s assent to the bill of lading.
The foregoing instruction, however, holds that unless the shippers’ attention was called to the terms of the bill of lading at the time they received it, they are not bound by them. Whether their attention was called to them at that time does not appear, but it does appear and is admitted that, at the time of the delivery of the oil to the defendant for transportation, the shippers gave to the defendant certain shipping directions, in which were contained the same identical terms and conditions, limiting and qualifying the defendant’s common law liability, which were inserted by the defendant in its bill of lading. The shipping directions were in the nature of a proposition for a contract, and we see no difficulty in holding that, when assented to by the defendant, they became binding on the shippers, so as to require no further assent or ratification on their part. But whether conclusive or not, the shipping directions are evidence strongly tending to prove knowledge on the part of the shippers of the terms of the bill of lading, as well as their assent thereto. It follows, necessarily, that the instruction was erroneous in ignoring their effect as evidence on those questions.
We are also of the opinion that the third instruction given to the jury at the instance of the plaintiffs, was erroneous. That instruction is as follows:
“The jury are instructed that the bill of lading offered in evidence recites that the goods were in apparent good order and condition when received by the defendant, and by said bill of lading the defendant contracted to deliver said goods in like good order and condition, at Milwaukee, Wis., and if the jury believe from the evidence that the goods were not delivered in as good order and condition as when received by defendant, ordinary wear and tear and ordinary deterioration excepted, and that the plaintiff was injured and has sustained damage thereby, then the plaintiff is entitled to recover,.unless the jury believe from the evidence that the damage or injury to such goods resulted from some fault or negligence of the plaintiff, or from the act of God, the public enemy, or an irresistible and lawless mob.”
By this instruction a portion, at least, of the conditions of the bill of lading, limiting and qualifying the defendant’s common law liability, seem to have been ignored. By those conditions the defendant was exempted from liability for loss arising from dangers incident to railroad transportation, including, in case of oils, the risk of leakage. If said conditions were assented to by the shippers, and that, as we have' remarked, was a question of fact for the jury, the defendant was not chargeable with damages arising, without gross negligence on its part, from any of these excepted causes. The instruction, however, limits the exemption to damages arising from the plaintiff’s negligence, the act of God, the public enemy and mob violence. It should have laid down a rule of exemption as broad as the one established by the parties in their contract.
For the error in giving the foregoing instructions the judgment will be reversed and the cause remanded.
Judgment reversed.
