delivered the opinion of the Court:
This is an action on the case, by appellee, against appellant, as a common carrier, to recover damages for the loss of the plaintiff’s horse while being shipped over appellant’s railroad. There is little dispute as to the facts of the case. . There was ample evidence to show gross negligence on the part of the servants of the defendant, from which the injury to the horse resulted.
By the ruling of the trial court in giving an instruction for the plaintiff, and in the modification of one asked by the defendant, the question of law is presented, whether it is competent for a railway carrier to limit or restrict, by contract, its liability for an injury to property, during its transportation, against the gross negligence of the carrier or its servants.
The act in respect of common carriers, approved March 27, 1874, provides: “That whenever any property is received by a common carrier'to be transported from one place to another, within or without this State, it shall not be lawful for such carrier to limit his common law liability safely to deliver such property at the place to which the same is to be transported, by any stipulation or limitation expressed in the receipt given for such property.” This is substantially re-enacted in section 33 of chapter 114, relating to railroads. These statutes do not, in terms, prohibit common carriers from limiting their common law liabilities by contract with the owner of property delivered for transportation. Formerly, the restriction of a carrier’s liability, when expressed in a mere receipt, often gave rise to the question as to whether the shipper had knowingly assented thereto, and this enactment was doubtless intended to obviate the difficulty growing out of that■ condition. In many respects a railway carrier may, liy express contract, limit its strict common law liability. It may, by special contract, limit the liability to such damage or loss as may occur on its own line of carriage. Illinois Central Railroad Co. v. Frankenberg, 54 Ill. 88; Chicago and Northwestern Railway Co. v. Montfort, 60 id. 175; Field v. Chicago and Rock Island Railroad Co. 71 id. 458; Erie Railroad Co. v. Wilcox, 84 id. 239; Wabash, St. Louis and Pacific Railway Co. v. Jaggerman, 115 id. 407. The carrier may limit its liabilities against loss by fire without its fault. (VanSchak v. Northern Transportation Co. 3 Biss. 394.) And the liability may thus be limited as an insurer, and against other loss not attributable to its negligence or that of its servants, and may require the value of goods offered for transportation to be fixed by the shipper, to protect itself against fraud in case of loss.
The courts of this State have never held that the carrier may limit or restrict its liability for loss or damage resulting from its own gross negligence or the gross negligence of its servants. On the contrary, it has been repeatedly and uniformly held that it can not do so, even by express contract with the shipper. The question first arose in Illinois Central Railroad Co. v. Morrison, 19 Ill. 136, and it was there said: “We think the rule a good one, as established in England and in this country, that railroads have the right to restrict their liabilities as common carriers by such contract as may be agreed upon specially, they still remaining liable for gross negligence or willful misfeasance, against which good morals and public policy forbid they should be permitted to stipulate.” And substantially the same language is used in Illinois Central Railroad Co. v. Read, 37 Ill. 484, and in Illinois Central Railroad Co. v. Adams, 42 id. 474. In Illinois Central Railroad Co. v. Smyser & Co. 38 Ill. 354, it was held that a railroad company may restrict its liabilities for loss or injury occurring during the transportation of property, the carrier being still held liable for gross negligence or willful misfeasance. So in Illinois Central Railroad Co. v. Adams, supra, it is said: “That although
the railroad company might protect itself by contract against certain risks assumed by common carriers and belonging to their vocation, it is contrary to good morals and public policy that they should be allowed to stipulate against their own gross negligence, or that of their employes, or their willful default.” In Oppenheimer v. United States Express Co. 69 Ill. 62, the court holds that the contracts exempting carriers from liabilities are not to be construed as providing against loss or injury occasioned by actual negligence on their part. In the subsequent case of Arnold v. Illinois Central Railroad Co. 83 Ill. 273, it was said: “The doctrine is settled in this court that railroad companies may by contract exempt themselves from liabilities on account of the negligence of their servants, other than that which is gross or willful.”
In the Read case, supra, the question arose where the plaintiff was riding on a free ticket, on the back of which was an indorsement to the effect that the person accepting the same assumes all risks of accident, and expressly agrees that the company shall not be liable, under any circumstances, for injury to the person or property of the passenger while using the ticket. It was held that the acceptance and use of the ticket made the indorsement thereon a special contract, but that the contract did not exempt the company from liability for injury caused by gross negligence.
In Erie Railroad Co. v. Wilcox, supra, we said: “The law has wisely, and for reasons that concern the public welfare, inhibited a common carrier of passengers or freight from contracting against its own negligence, or that of its servants and employes.” See, also, Toledo, Wabash and Western Railway Co. v. Beggs, 85 Ill. 80.
In Adams Express Co. v. Stettaners, 61 Ill. 184, goods were shipped from • Chicago to New York, worth in fact $400, for which the company gave the shipper a receipt limiting its liability to $50 in case of loss, of which the shipper had notice. It was there said: “Even if it should be conceded that the shipper must be considered as having consented to the terms of the bill of lading, we can not hold the carrier excused from the exercise of reasonable and ordinary care. Courts have often had occasion to express regret that common carriers have been permitted, even by contract, to excuse themselves from the obligations imposed by the salutary rules of the common law. * * * It is very unreasonable in the common carrier to say that it will in no event be liable beyond the sum of $50, in the absence of a special contract, though it may have received much more than that sum merely in the way of freight. * * * It would be very easy for them to require the shipper to specify the value of the merchandise, * * * making their charges in proportion to the liability. If the shipper should falsely state the value, he could not complain of being held to his own valuation. In order to prevent the carrier from releasing himself from all liability, courts have laid down the rule above stated, that he can not, even by contract, exempt himself from the exercise of reasonable care.” And the same rule was laid down in Boseowitz v. Adams Express Co. 93 Ill. 523, and it was there held that the defendant was liable for the full value of the goods, if the loss was owing to negligence on the part of the railway company, who was the servant of the express company in the transportation of the goods.
We have thus given an epitome of cases decided by this court, to which others might be added, for the purpose of showing that we are committed to the doctrine that a common carrier can not, even- by express contract, exempt itself from liability resulting from the gross negligence or willful misconduct committed by itself or its servants or employes. Whatever may be the rule elsewhere, in this State the common carrier can not contract for exemption from responsibility for a failure on its part, or that of its servants, to exercise ordinary care in the transaction of its business. If the carrier may by contract limit.its liability for gross negligence or willful misfeasance to any extent, it may contract for total exemption. A contract for exemption from liability for its torts being void, as against-public policy, it can not shield itself as to any portion of the damages to person or property occasioned by its gross negligence or willful misconduct. As we have seen, it may protect itself against fraud by requiring the consignee to state the value of the thing shipped; but when it receives property for transportation it must exercise reasonable care until it reaches its place of destination, and will.not be permitted to absolve itself from that responsibility.
By the strict rule of the common law, the carrier was liable for injuries resulting from causes beyond his control, and which were not the result of his act or the omission of his duty, the exception being, that he was not liable for injury or loss resulting from the act of God or the public enemy. Thus, he must account for goods received for transportation, even though they be destroyed by fire without his fault. The rule has generally been so far relaxed that the carrier may by special contract exempt himself from this strict liability imposed by the common law, but the weight of authority, in our judgment, holds, as this court has uniformly held, that he may not exempt himself from liability for damages resulting from the gross negligence or willful misconduct of himself or of his servants. The law does not authorize common carriers to fix, arbitrarily, the value of goods delivered to them for transportation, and thereby limit their liability in case of loss. If a value should be fixed by the carrier, as before stated, and the contract of shipment was based thereon, the amount thus fixed would ordinarily determine the liability of the carrier. It would not, however, if untruthfully given in respect of property that the carrier had less opportunity to inspect and know the value of than the shipper, estop the carrier to show that the value was less than that fixed. It can not be said that the clause in this contract attempting to limit a recovery to $100, amounts to an admission on the part of the shipper that- the horse was worth no more than that sum. It was not made by the shipper or intended as a statement of the value of the property, but was intended to fix a limit to the defendant’s liability in case of loss; and if the contract had not been void, and had been knowingly entered into by the shipper or his authorized agent, it might have furnished the measure of recovery. If the injury to the property and damage resulting had been caused by any casualty against which the carrier might contract, the tender made by the defendant of the amounts named in the contract might have been a bar to a recovery, if it had been kept good. It is manifest from the foregoing that the tender was not effectual to defeat a recovery by the plaintiff.
As before said, we are not unmindful that a contrary rule has been announced by courts of the highest respectability, and among them the Supreme Court of the United States. Notwithstanding the great respect we entertain for the very learned and eminent tribunals which have thus held, we are so strongly committed to the doctrine before announced that we feel compelled to adhere to the rule so long and firmly established in this State, and notwithstanding the persuasive weight of the rulings of these eminent tribunals, and of the reasons givAi for their decisions, we are still satisfied that the rule laid down in this State is based upon sound reason and a wise public policy, and is also supported by the decided weight of authority.
In this case, the agent of appellant came to the agent of the appellee and others, and offered special inducements to ship their animals over appellant’s road. No representation was made by appellee or his agent to induce the fixing of the value, either of the property shipped or of the services of appellant for its carriage. It is insisted that the company had two classifications at the time, under which live stock was' shipped; that one limited the amount of recovery for a horse to §100 in case of loss, and that in the other class there was no limitation, but a higher freight rate was charged. At the time of this shipment no notice was given of any such classification. The appellant’s agent received the property, charged what he saw proper, and made out the bill of lading without asking any questions as to the value of the property. The fact that such classification existed could in no way affect the plaintiff’s right of recovery, unless notice thereof had been brought home in some way to the plaintiff or his agent. But it can not avail, in any event, as against the right of recovery here. Plaintiff was guilty of no misconduct which would estop him from asserting his right to recover the value of his property, and it was unlawful for the railway carrier to contract for exemption from liability resulting from the gross negligence of its servants.
Some other minor points are made, which, however, have . been disposed of by what has already been said, and no further discussion need be indulged.
We find no substantial error in the record, and the judgment of the Appellate Court will be affirmed.
Judgment affirmed.