dissenting:
It is the law of this State that a railroad corporation can not limit its common law liability by any stipulation or limitation expressed in -the receipt given for the property. Section 33 of the act in relation to fencing and operating railroads, in force July 1, 1874, so provides. But a bill of lading may contaiii provisions and restrictions which, if assented to by the shipper, will amount to a contract, and the carrier may thereby limit its liability to such damage or loss as may arise on its own line. (Chicago and Northwestern Railway Co. v. Simon, 160 Ill. 648; Illinois Central Railroad Co. v. Carter, 165 id. 570.) A limitation of that character in a bill of lading is not binding on the shipper unless he knew of and assented to the limitation, and that is a question of fact, as to which the judgment of the Appellate Court is conclusive. (Chicago and Alton Railroad Co. v. Davis, 159 Ill. 53.) The carrier must show that there was an express contract for the exemption, and where the limitation is contained in a bill of lading not signed by the shipper, the burden is on the'carrier to prove the contract by showing that the shipper assented to the limitation. (Chicago and Northwestern Railway Co. v. Simon, supra.) That is merely proving that there was a contract, and if the proof is made the limitation in the bill of lading will bind the shipper as effectually as though he had signed it. (Boscowitz v. Adams Express Co. 93 Ill: 523.) In this case there was an express contract signed by the plaintiff and the agent of the defendant, restricting the defendant’s liability to its own line; but it is held that the burden was upon the defendant to prove by other evidence that the plaintiff assented to the terms and conditions of the contract which he signed. I have not been able to discover any good reason for reversing the rule applied to other contracts and transactions, that one who has signed a contract is presumed to have understood and assented to its provisions. The validity of such a contract may be impeached. (Black v. Wabash, St. Louis and Pacific Railway Co. 111 Ill. 351.) But I cannot agree with the conclusion that there is no presumption that the contract was assented to by the parties to it and that the fact of such assent must be proved by other evidence. The only case where such a rule was applied to a contract which appeared from the facts stated to have been signed by the shipper, is Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v. Patton, 203 Ill. 376, where it was said that in the absence of evidence that the terms of the contract were assented to by the consignor, the presumption followed that he did not assent to the terms of such contract. I think that decision ought not to be followed in this case.