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collect on delivery the specified amount due the consignor from the consignee on the package, or return the same.1 In another case2 the court held that the mere marking of a package "C. O. D.” did not obligate the carrier to collect payment for the same of the consignee. The usage must be shown to be such as to make the acceptance of the consignment so marked an agreement to act as collecting agent of the consignor. $297. In its capacity of warehouseman a railroad company has a lien on the goods for all accrued and unpaid charges, including reasonable storage fee.3 A warehouseman is liable only for losses occasioned by his failure to exercise ordinary care and diligence. By statute the company is obliged to use due diligence in trying to find the owner of the freight, and must keep the goods six months. After that, or in case the owner has been actually notified of the arrival, three months after the notification the company must send the same to a warehouse if the latter will receive it and pay the charges, and if there is none, or the warehouse refuse to receive the goods, then the company may sell the same at public auction, after giving ten days notice of the time and place of sale by posting up notices of it in at least three conspicuous places within the county. If the goods bring more than the charges, the surplus must be paid to the owner or consignee on demand.

$298. In case of wrong delivery by mistake, the party responsible for the blunder must make good the

1 American Express Co. v. Lesem, 39 Ill. 313.

2 Chicago and Northwestern R. R. Co. v. Merrill, 48 Ill. 425. 3 Low v. Martin, 18 Ill. 290.


Chicago and Alton R. R. Co. v. Scott, 42 Ill. 132; St. Louis, Alton and Terre Haute R. R. Co. v. Montgomery, 39 Ill. 335.

Gross' Statutes, vol. i, page 62.


damage.1 This is so very plain a proposition that a direct issue on that point is very rarely raised, and never treated by the court as an open question. The only way to escape responsibility is by showing a blunder, inaccuracy or vagueness in the directions given. The liability of the carrier for negligence and his responsibility to make good all losses therefrom is a question of fact to be passed upon by the jury. The carrier is bound to use the same prudence that a cautious man would in the transaction of similar business for himself. In operating its road through the streets of a city a railroad would be held to a very high degree of care and diligence, but it would be only necessary to use every reasonable precaution to avoid an injury and not every possible precaution nor any particular means which it may appear, after the accident, would have avoided it.3

§ 299. As a general rule, where both parties are guilty of gross negligence, the plaintiff cannot recover. If the negligence of the plaintiff is equal to that of the defendant he cannot recover, but if the negligence of the defendant is of a higher degree than that of the plaintiff the latter may recover to that extent. It is not only for injury or destruction of property that recovery may be had. If unnecessary delay should occur, the railroad company will be obliged to make

1 Chicago and Northwestern R. R. Co. v. Ames, 40 Ill. 249.

2 Skelley v. Kahn, 17 Ill. 170; Galena and Chicago Union R. R. Co. v. Yarwood, 15 Ill. 468; Ibid. 509; Illinois Central R. R. Co. v. Nunn, 51 Ill. 78; Toledo, Peoria and Warsaw R. R. Co. v Foster, 43 Ill. 415.

3 C. B. & Q. R. R. Co. v. Stumps, 55 Ill. 367.

Illinois Central R. R. Co. v. Baches adm'x, 55, Ill. 379.

good the loss occasioned by its negligence.1 Corporations are usually liable only for compensatory damages, but if the injury is wanton or willful, in addition to actual damages something may be recovered for the vexation and discomfort which may have been suffered by the individual. In general, the law allows no constructive damages, but only actual or compensatory.3

$ 300. The measure of damages in case of entire loss of property is the value of the property destroyed.4 In case of injury to property, the goods, though damaged, must be taken by the owner, and the measure of damages will be the difference in value of goods before and after the injury. Losses occasioned by inherent defects or inevitable leakage cannot be recovered from the carrier.


$301. We have thus surveyed the ground of freight liability as suggested by an examination of Illinois statutes and reports. Cases not unfrequently arise which turn upon the true meaning of the term "act of God." The definition of the term given by Sir

'Illinois Central R: R. Co. v. Owens, 53 Ill. 391; same v. Waters, 41 Ill. 73; Michigan Southern and Northern Indiana R. R. Co. v. Day, 20 Ill. 375; Galena and Chicago Union R. R. Co. v. Rae, 18 Ill. 488; Chicago and Mississippi R. R. Co. v. Patchin, 16 Ill. 198; Sangamon and Morgan R. R. Co. v. Henry, 14 Ill. 156.

2 Chicago and Northwestern R. R. Co. v. Williams, 55 Ill. 185. Hayes v. Moynihan, 52 Ill. 423; Illinois Central R. R. Co. v. McClellan, 54 Ill. 58; Frink v. Scroyer, 18 Ill. 416; Priestly v. Northern Indiana and Chicago R. R. Co. 26 Ill. 205; Sleuter v. Wallbaum, 45 Ill. 43; Deere v. Lewis, 51 Ill. 254; Galena and Chicago Union R. R. Co. v. Rae, 18 Ill. 488; Illinois Central R. R. Co. v. Finnigan, 21 Ill. 648.

Toledo, Peoria and Warsaw R. R. Co. v. Arnold, 43 Ill. 418. 5 Illinois Central R. R. Co. v. Finnigan, 21 Ill. 648.

William Jones is "an inevitable accident." But this definition does not prevail in Illinois, nor is it recognized by the best authorities. Parsons, in his work on contracts, defines the term as applying to "an accident which arises from a cause which operates without interference or aid from man." A conflagration is not of that nature unless it was caused by lightning or spontaneous combustion, and not always then. Man may have indirectly caused it by neglect to use due precaution. The doctrine is well expressed by Bouvier in these words: "Where the law casts a duty on a party, the performance shall be excused if it be rendered impossible by the act of God; but where the party, by his own contract, engages to do an act, it is deemed to be his own fault and folly that he did not thereby provide against contingencies and exempt himself from responsibility in certain events; and in such cases (that is, in the instance of an absolute general contract,) the non-performance is not excused by an inevitable accident, or other contingencies, although not foreseen by nor in the control of the party."


§ 302. The term defined; three statutes. 303. Permission granted, act of 1853. 304. The duty enjoined, act of 1869.

305. This branch of railway business distinctly recognized,

act of 1873.

306. Liability for consignments.

307. Usage and car service.

308. Established common law.

309. Actions for damage.

§ 302. The term car service is used in railway circles to designate the business of hauling the cars of

other corporations or persons. The duty to render car service, so far as concerns the cars of other railroad companies, is enjoined in the railroad statute of 1853, also in the supplemental act of 1867.1 The first statutory recognition and application of this duty in its fullest sense occurs in the railway statute given in full in the chapter on the railroad and warehouse commissioners.

$303. The statute of 1853 reads: "All railroad companies incorporated or which may hereafter be incorporated under the authority of this state, the lines or routes of which railroads may connect with or cross each other, shall have power to make contracts and arrangements with each other for the use of each other's engines, machinery, or cars, as also for the mutual transportation of materials, merchandise and passengers upon and along the lines of each other's roads, upon such terms as may be mutually agreed upon between any such corporation."

8304. This act was followed fourteen years later by a mandatory act, which has two sections, touching car service. After declaring that the delivery and transfer of freight shall be without favor, prejudice, delay, or extortion, the statute adds, "and it shall be the duty of all such railroad companies to deliver to any warehouse, as directed, any and all cars which may be consigned thereto, and to remove from such warehouse such cars as may be laden thereat for transportation from such warehouse, on the request of the owner or warehouseman, to be shipped within a reasonable time thereafter; and any railroad company shall run the cars of connecting roads over their track 1 Gross' Statutes, vol. i, 536.

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