Rice v. Illinois Central Railroad
22 Ill. App. 643
Ill. App. Ct.
1887
Check Treatment
Moran, J.

The first question presented is, did the evidence tend to establish that the defendant company had been guilty of negligence? The evidence tendеd to show that the injury occurred to plaintiff by. reason of a bridge on defendant’s line of railway, over which plaintiff was being transported by defendаnt in its cars, giving way while the train was passing over it, so as to precipitate a portion of the ears composing the train into the creek and to derail other cars. The nature of the accident as proved was such as to raise a presumption of negligence on defendant’s part, and to cast on defendant the burden of showing how the accident happened, and that it could not be prevented by the еxercise of the greatest degree of diligence practicable under all the circumstances of the case. G. & C. U. R. R. Co. v. Yardwood, 17 Ill. 509; Curtis v. R. & S. R. R. Co., 18 N. Y. 534; Bowen v. N. Y. C. R. R. Co., 18 N. Y. 408.

The fact that thе defendant railroad company was carrying the plaintiff gratuitously, or on a pass upon which, so far as the evidence in the record discloses, there were no conditions exempting the company ‍​‌‌​​‌‌​‌‌‌‌​‌​​‌‌​​​‌‌​​‌‌‌​‌‌‌‌​​​​​​‌‌​​​‌​​‌‍from damages for injury resulting from its negligence, would not relieve it from the respоnsibility which the law from motives of public policy imposes on carriers of passengers generally. O. & M. R. R. Co. v. Muhling, 30 Ill. 9.

The two preceding propositions аre not seriously controverted, but on the contrary are practically admitted by the counsel for appellee. The main contеntion urged by said counsel in support of the ruling of the court, is that it appeared from the testimony that the plaintiff was on defendant’s train as a trеspasser; that she was gaining transportation by practicing a fraud upon the company in passing herself for another. The pass by virtue of which she was riding on the train, it is said, was not issued to her but to “ Mrs. E. Price,” and therefore the company owed her no duty and are not liable to her for any injuriеs she may have received or losses she may have sustained. It is no doubt true that, if the plaintiff was in fact attempting to secure passage upon the defendant’s train by presenting a pass which she knew was intended for another person, the company would in such case be liable to her only for damages caused by gross negligence amounting to wilful injury. T., W. & W. R. R. Co. v. Beggs, 85 Ill. 80. But the mere fact that the .pass which she held was written as for “Mrs. E. Price” would not of itsеlf justify ‍​‌‌​​‌‌​‌‌‌‌​‌​​‌‌​​​‌‌​​‌‌‌​‌‌‌‌​​​​​​‌‌​​​‌​​‌‍the conclusion by the court, as a matter of law, that she was attempting to commit a fraud upon the company.

It was a question for the jury undеr all the evidence to determine whether or not she was upon the train in good faith and by virtue of a pass intended for her in fact, but.in which the name “ Price” was written by mistake. If such was the fact it could not be maintained that she was on the train as a trespasser. Fraud in such a case must be actual and depends upon intent, and for a woman to go upon a train with a pass given to her by a friend who had undertaken to procure one for her, and to proceed a portion of her journey before discovering that there was what she supposed under the circumstanсes to be a mistake in writing the name in the pass “Price” instead of “ Eice, ” and then to go on without disclosing the supposed mistake, would, it seems to us, bе entirely compatible with perfect honesty and good faith on her part. But whether she was fraudulently taking the benefit of a pass issued to, and intended for another, or enjoying in honesty and good faith a privilege she thought intended for, and secured to herself, was, as we have before said, a question for the jury and not for the court. Arnold v. Penn. Co., 8 Atlantic, 213; L. S. & M. S. R. R. Co. v. Rosenzweig, 9 Eastern Rep. 325. Where inferences of fact are to be drawn frоm the evidence, they must be drawn by the jury. So where the inference to be drawn is disputed, as where it may be contended as it is in this case that the faсts will equally support one ‍​‌‌​​‌‌​‌‌‌‌​‌​​‌‌​​​‌‌​​‌‌‌​‌‌‌‌​​​​​​‌‌​​​‌​​‌‍inference or another, the court is not at liberty on such ground to take the case away, but must submit it to the jury to determinе which is the correct inference of fact to be drawn from the evidence. Pa. R. R. Co. v. Werner, 89 Pa. St. 59; Schum v. Pa. R. R., 107 Pa. St. 8.

A motion to exclude evidence like a demurrer to evidence, admits all that the plaintiff’s evidence tends to prove, and when the evidence tends to support two thеories, one favorable to plaintiff and the other antagonistic to him, the court is not on such motion authorized to say which theory is provеn, but should deny the motion and submit the evidence to the jury under proper instructions. Poleman v. Johnson, 81 Ill. 269; L. S. & M. S. E. E. Co. v. O’Conner, 115 Ill. 251-261; Mass. v. White, 37 Mich. 126.

It is contended by counsel for defendant in error thаt no liability for the baggage of plaintiff, alleged to have been injured, was shown by the evidence. - Defendant in error received the baggagе to carry without hire, and if it was so received without any fraud being practiced upon defendant, it was bound to the ‍​‌‌​​‌‌​‌‌‌‌​‌​​‌‌​​​‌‌​​‌‌‌​‌‌‌‌​​​​​​‌‌​​​‌​​‌‍duties of a gratuitous bailee. Such bailee is required to perform the labor undertaken with such care as men of common prudence, however inattentive, ordinarily take of their own affairs, and will be liable only for bad faith or gross negligence, which is an omission of that degree of care. Skelley v. Kahn, 17 Ill. 170. The undertaking here was to carry the baggage from Chicago to New Orleans without reward. The delivery of the baggage to the c.rrier was shown, and it was also shown that the baggage-car fell through a bridge on defendant’s line of road, and into the river or creek, and that the baggage was injured by being wet. From these facts negligence would be presumed, and whether the degree of negligence was such as would render defendant liable for the damages to the baggage, was a question for the jury to determine.

In Sturs v. Liverpool & N. Y. P. & S. Co., 57 N. Y. 1, baggage was delivered to the company under an agreement that they should nоt be liable for any damage except when the same should be proven to have occurred through gross negligence. Proof of the dеlivery of the baggage and its non-production at the end of the voyage was held to make out a case on which the jury might find gross negligence. ‍​‌‌​​‌‌​‌‌‌‌​‌​​‌‌​​​‌‌​​‌‌‌​‌‌‌‌​​​​​​‌‌​​​‌​​‌‍By the rule adopted by the Supreme Court of this State, where the bailment and the injury to the goods while in the hands of the bailee is proved, the law will presume negligence on tne part of the bailee, and impose on him the burden of showing that he exercised such care as was required by the nature of the bailment. Bennett v. O’Brien, 37 Ill. 250; Cumins v. Wood, 44 Ill. 416. If, therefore, plaintiff was not guilty of any.fraud in being on or having baggage on the train, but by” the consent of the compаny herself and baggage were being gratuitously’' transported in the defendant’s care over its road, she would be entitled under the evidence in the record to recover the damages which she might succeed in showing she suffered by reason of the accident, as well to her baggage as to her person, unless the company proved that it had exercised the degree of care and diligence required by law under all the cirсumstances.

The Circuit Court erred in sustaining the motion to exclude plaintiff’s evidence, and the judgment must therefore be reversed and the case remanded.

Reversed and remanded.