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but may charge therefor a reasonable track service, not exceeding the price per mile of the transportation of like articles from local points on the line of such road." The penalty for violation of this law is fixed at twice the value of the consignment, "to be recovered by the agent of such consignment in any action of debt in any court of competent jurisdiction."

$305. Of the statute of 1873, given in full elsewhere, it is enough to say in this connection that the railroad companies are required to haul all cars offered them at a reasonable rate and without discrimination of any kind. Precisely the same penalties are attached to extortion and discrimination in car service as in the ordinary carriage of freight and passengers. The law simply recognizes the three branches of railway business as standing upon the same legal basis.

§ 306. Where the use of cars has been hired from a railroad company to be employed in the transportation of freight, to be laden as the hirer may see fit, the company does not incur any risk incident to the mode adopted in loading the same. But a railroad company cannot relieve itself from liability to the public for injuries sustained and for damages resulting from a breach of contract entered into by the lessee, especially where the power to lease is not expressly given by the charter. 1

307. The law of usage is of great importance in determining the liabilities of a railroad company.2 The doctrine of the cases cited below is that a rail

1 Ohio and Mississippi R. R. Co. v. Dunbar, 20 Ill. 623.

2 Galena Ins. Co. v. Kupfer, 28 Ill. 332.

3 Bissel v. Ryan, 23 Ill. 566; Marine Bank v. Chandler, 27 Ill. 525; Same v. Birney 28 Ill. 90; Byrne v. Byrne, 47 Ill. 507;

road company is obliged to take for any person offering that which it has been accustomed to take from others, provided there is no specific and sufficient reason for making an exception. If a railroad company had never been accustomed to haul any cars except those which itself owned, or had leased, it would not be obliged under its common law liability as a carrier to transport freight or passengers in any cars except its own, and it might be questionable, in that event, whether the legislature had a right to require car service. The doing of a thing a few times does not establish a custom. Sometimes, for example, voluntary aid is rendered by a railway agent in recovering lost baggage when the company was not obliged to render any aid. Doing a thing in one case or occasionally does not render the company under obligations to do it always.

§ 308. Such customs as are universally known to exist enter into and form a part of every contract to which they are applicable, although not mentioned or alluded to in the contract. 1 This principle governs the contracts between the state and the railway corporation. In the case of hauling cars, it is only necessary to add that the custom is uniform, long established and so well known as to warrant the belief that all parties to any kind of a transportation contract are familiar with this usage. No case has arisen in which the liability to car service has been denied. The

Dixon v. Dunham, 14 Ill. 324; Crawford v. Clark, 15 Ill. 561; Munn v. Burch, 25 Ill. 35; Fay v. Strawn, 32 Ill. 295; Deshler v. Beers, 32 Ill. 368; Strong v. King, 35 Ill. 9; Turner v. Dawson, 50 Ill. 85; Home Ins. Co. v. Favorite, 46 Ill. 263.


1 Michigan Southern and Northern Indiana R. R. Co. v. Meyres, 21 Ill. 631; C. B. & Q. R. R. Co. v. Hazzard, 26 III. 373.

decisions referred to would be of use in substantiating the right, in case it should at any time or in any way be called in question.1

§ 309. The statute allows suits at law to be brought against the railroad company in any circuit court through which the railroad extends, only all suits must be brought and prosecuted in the county where the cause of action accrued. In commencing such a suit the prosecution must publish a notice of it four successive times in a weekly newspaper in the county or in the nearest county having a newspaper The first publication must be sixty days prior to the first day of the next succeeding term of court.2 A railroad company may also be sued in the county where its chief business office is located, though the railroad does not itself pass through such county.3


§ 310. Accidents at crossings.

311. General requirement of act of 1869.

312. Duty of the county surveyor.

313. Notice to the railroad company.

314. Official investigation and report.

315. The notice self-inforcing.

316. Penalty for disregarding the report.

317. Filing of the report.

318. Flagmen at crossings.

319. Penalty for not maintaining a flag station.

320. General application of the statute.

1 For a general discussion of the law of usage see Macomber v. Parker, 13 Pickering 182; United States v. Duval, Gilpin, 356; Ibid. v. Arredondo, 6 Peters, 715; Naylor v. Semmes, 4 Gill & Johns, 274; Knowles v. Dow, 2 Foster, N. H. 387

2 Gross' Statutes, vol. i, page 536.

2 Bristol v. Chicago and Aurora R. R. Co. 15 Ill. 436.

321. Qui tam action and crossings 322. The common law doctrine.

323. Municipalities and crossings.

324. Bell; Whistle; Signal board.

325. Failure to sound the alarm prima facie evidence of carelessness.

326. Railway junctions, full stop required.

§ 310. From a glance at the records of railway casualties, in Illinois, at least, one would be inclined to say that it is safer to be on a train than off. Certain it is that, take the years through, more persons are run over by the cars than killed by collisions and other mishaps to the train. This is especially the case at crossings. The victims are most frequently children. At common law there is redress, on precisely the same principle of liability as in the case of injuries to passengers. While there is no adequate statutory provision to prevent the mismanagement of trains, the legislation on the subject of railway crossings is thorough and greatly beneficial. The statute dates from March 1, 1869. As the requirements are too plain for misunderstanding and their justice has not been called in question by subsequent litigation, it is hardly necessary to do more than to give the law, as found in the statute books.5

311. Wherever a railroad crosses the public highway, outside the corporate limits of a city or village, the company is obliged to erect and maintain such crossings and approaches as shall be safe as to persons. and property. This in itself is vague, but its very indefiniteness is its chief merit. Had the law attempted

5 The full text of this act is given in Gross' Statutes, vol. i, chap. 86, div. 10.

to go into particulars in the general proposition, it would have been incomplete. No details, however full, can be absolutely exhaustive while "the whole includes its parts," and by no possibility leaves out anything. The exception of cities and villages is made because the local authorities have jurisdiction over the matter within their respective municipalities. The municipal regulations are usually very strict and minute in details.

§ 312. The enforcement of this law is practically intrusted to the county surveyor. If that officer refuse or neglect to promptly and fully discharge his duty herein he is liable to a fine of not less than $100 nor more than $1,000 for each year of disobedience or negligence. The prosecution for neglect is intrusted to the prosecuting attorney, and the supervisors of the county or county commissioners are required to appoint a competent civil engineer to discharge the duty, in case the surveyor is derelict, the appointee having all the authority, compensation and liability in the premises as the surveyor. It was the evident intention of the general assembly to make sure of the enforcement of the statute.


§ 313. The first specific duty of the surveyor is to notify each railroad company within the county when he will proceed to view and examine any and all railroad crossings in the county upon its line for the pose of determining what, if anything, shall be done to render them secure. This notice must be given in writing to the superintendent of the road, or some station agent residing in the county. The day named must be at least twenty days subsequent to the notice. The examination must be made once a year. The

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