The question presented in this case is one of importance to the business public, and to the railroad interests, and has received due attention from the court.
That railroad companies are common carriers cannot be disputed, and, being so, they are bound and controlled, as a general principle, by all the common law rules applicable to such a position — they becoming, in fact, insurers.
Until the establishment and use of railroads for the conveyance of property, it was not generally considered that common carriers could, by special contract, limit their liability, or take themselves out of the severe rules which governed such business.
At this time, railroads have acquired much of the carrying trade of the country, and reversing the former order of things, now carry the very animals which propelled the old machines used for that purpose. It was quite an era in trade and transportation, when speedy means were devised by railroads for carrying live stock from one extreme of the country to the other, and, on its origination, new rules were found necessary, or modifications of old ones, as applicable to this new system, which, Avhilst protecting these magnificent and costly enter-prizes, should be so guarded that no injury to the public should flow from them.
Transportation of live stock in railroad cars, in their rapid motion, is attended with great hazard, against which, if the companies owning them had no power of protection, irretrievable ruin to them might be the necessary consequence. Accordingly, we see that the courts in England, where the railroad system, though yet perhaps in its infancy even there, has been brought to great perfection, and in most of the older and well regulated, and highly commercial States of our Union, have declared that these companies may protect themselves from their general liability as common carriers, by special contracts.
The facts in this case show that about the tenth of November, 1856, one of the plaintiffs, D. A. Morrison, without disclosing any partnership, contracted with the agent of the Illinois Central Railroad Company at Urbana, for a sufficient number of cars to transport about four hundred head of cattle from that station to Chicago, at the rate agreed upon of thirty-three dollars a car, Morrison agreeing to sign the usual release, as to risks, delays, etc. On the 10th of November, Morrison arrived at Urbana with about four hundred head of cattle, and commenced loading them in the cars furnished by the agent, and had placed one hundred and eighty-seven head in eleven cars. At which time he signed a release in this form :
Morrison having this day loaded into the cars of the Illinois Central Kailroad Company, numbered 10, 14, etc., the following live stock, viz.: 187 head of cattle, (more or less), and the said Kailroad Company having agreed to charge freight upon said live stock only at the rate of thirty-three dollars per car-load, instead of first class rates as fixed by the tariff of the said Company, I do hereby, in consideration of the said redaction of charge for freight, declare that the said live stock is to be transported at my risk, and I do agree to release, and do release the said Kailroad Company from any and all claims which may or might arise from damage or injury to said stock while in the cars of the said Company, or lor delay in its carriage, or for escape thereof from the ears, and generally, from all claims relating thereto, except such as may arise from the gross negligence or default of the agents or officers of the said Company, acting in the discharge of their several official duties.
Witness my hand and seal, this 10th day of November, 1856.
D. A. MOKKISON. [seal]
Attest: William T. Haven.
A portion of these cattle, it appears, were left at Onarga, a station north of Urbana, and another car obtained there, in which they (36 head,) were placed, and a similar release executed, on the 12th November, in, the name of D. A. Morrison, by his son, without any authority, as ho testifies, from his father. And, on the 15th, ninety-one head were shipped, and a similar release executed by James Crabtree in the name of D. A. Morrison, but, as he testifies, without any authority from Morrison. These two last releases were excluded from the jury.
The parol agreement, made by Morrison in person, in the view we have taken of the case, attaches to the whole transaction, to the, extent, at least, of four hundred head of cattle, no matter whose they were, whether owned by Morrison alone, or jointly with others. The agreement made, was for the transportation of four hundred head, and they were delivered at different times. For one hundred and eighty-seven head of these cattle, delivered by Morrison himself, he signed the above release or agreement, and by sending other cattle by his agents, he sent implied authority with them to carry out the parol agreement he had made. They were his agents to deliver under the parol contract, and to do all acts necessary and proper in furtherance thereof. It was one entire transaction, an unit, embracing Crabtree’s interest as well as Morrison’s, and parties so situated cannot be allowed to split up a contract into several distinct parcels and liabilities.
The declaration is in case, and sets out nothing more than the general and ordinary duties of defendants as common carriers, with a count in trover added.
In such case, the defendants have a right to defend themselves by the special contract.
The defendants have paid a valuable consideration for the risks assumed by the plaintiffs, by accepting reduced rates, and the plaintiffs have had the full benefit of the reduction. It would be great injustice to require the company to pay for escaping risks, and then burden them with the losses against which, by fair contract, they have purchased exemption.
The whole case shows, merely, a hiring of cars and motive power — there being no complete delivery of the cattle to the defendants, as the owners, or their agents, or some one of them, accompanied them and had them in their own charge. They could not be stowed away, like inanimate matter, and had the power of locomotion, and were exposed to various accidents, the risk of all which the company paid the plaintiffs to assume.
We think the rule a good one, as established in England and in this country, that railroad companies have a right to restrict their liability as common carriers, by such contracts as may be agreed upon specially, they still remaining liable for gross negligence or willful misfeasance, against which good morals and public policy forbid that they should be permitted to stipulate. See 1 Am. Railway Oases, in note, page 181; Redfield on Railways, 264 and onward ; 2 Ohio State Reports, 131.
As the Circuit Court seemed to have entertained views of the law different from those here expressed, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Judgment reversed.