Mr. Chief Justice Breese
delivered the opinion of the Court:
The question presented by this record, is one of great importance to the public, and to the railroad interests of the country, and has received our most careful consideration.
It is a question on which the courts of this country are not in harmony with themselves, nor with those of England, to whose decisions we are accustomed to refer as evidence of what the common law is, on any subject which has engaged their deliberations.
The question is, as to the extent of the liability of a railroad company as common carriers of goods and property.
While there is no difficulty in defining, in general terms, when the liability of a common carrier begins, the courts of this country are not agreed as to the point when it terminates.
A common carrier is defined to be one who undertakes, for hire, to transport the goods of such as choose to employ him, from place to place. Eailway companies are under obligations to receive and transport all goods which may be offered to them for such purpose, and without delay. They can not lie by, as the wagoners in early times were accustomed to do, for a rise in the price of freights. They are regarded by all courts as common carriers, resting under a duty to transport such articles as may be delivered to them in the course of their business, and their liability commences when the goods are delivered to their agent authorized to receive them. They may demand the freight money in advance, and if not paid, may refuse to carry the goods, but when they are received they are at the risk of the carrier, and from which time he is regarded as an insurer, and held to the most stringent responsibilities, from which he can only be relieved by the operation of one of two causes, the act of God or the public enemy. Public policy has always demanded this rule, inasmuch as the goods are entirely in the power of the carrier, and it being so easy for him to conceal his fraud or misconduct, and so difficult for the owner to prove it, that the law does not permit the inquiry, but supplies the want of proof by a conclusive presumption. Porter v. Chicago & Rock Island R. R. Co. 20 Ill. 407; Baldwin v. American Express Co. 23 ib. 197.
The liability of the carrier commencing with the receipt of the goods, it necessarily continues until they are delivered by him at their place of destination, where the owner or consignee is bound to be present and receive them, and pay the freight for them, if not previously paid. If he be not present to receive the goods, they can be placed in a safe and sufficient warehouse, when the liability of the carrier ceases and that of warehouseman begins.
The important question now arises, is he thus bound to carry and deliver to a point or place not on his route ?
This is a question not settled by the courts of this country, though the received doctrine may be said to be, that the carrier, is not responsible beyond his own route, except upon his special undertaking so to be liable.
By the law of common carriers, their liability was fixed on the receipt of the goods to be carried. They are insurers of the goods, and if not delivered at their place of destination, they are accountable for them, and when called upon to account for them, the onus of proof is upon them, and they are chargeable with their value, unless the loss was caused by a force superior to human agency, which no foresight could have guarded against, or by the public enemy.
This is the extent of the liability of common carriers by the common law. The receipt of goods by them is all that is necessary to fix this liability, so that, if a parcel or package be delivered to a railroad at Chicago, marked for Louisville, Kentucky, or any other place off their route, and they receive it to carry, they are bound, by this rule of the common law, if the parcel or package be lost, to account to the owner for its value. The contract of the shipper is with the carrier in whose custody he placed the goods.
A responsibility so vast being cast upon carriers by the common law, it soon became a question how they could remove or lessen it. A resort was had to a general notice, which was held by this court and other courts to be insufficient. Western Transportation Co. v. Newhall, 24 Ill. 466. But it was held by this court, in the ease of the Illinois Central R. R. Co. v. Morrison et al. 19 ib. 136, that such carriers may relieve themselves from their general liability by special contract. In that case Morrison, by his writing, under seal, in consideration of a reduction of the freight charges upon a lot of cattle, assumed the risk of transportation, and released the company from all claims which might arise from damage or injury to the stock while in the cars, or for delay in its carriage, or for escape from the cars, and, generally, from all claims except such as might arise from the gross negligence or default of the agents or officers of the company.
We have examined all the cases cited upon both sides of this question, and pondered them, anxiously desiring to recognize a rule which, while it shall not perplex and injure the commercial interests of the country, shall, at the same time, protect the carrier’s interest, or, at least, be of so much service to it that the proprietors of that interest may know and understand the full extent of their obligations to the public.
So long ago as 1860, this court, in the case of this same company against Copeland, 24 Ill. 332, expressed a decided partiality for the rule in Muschamp’s case, 8 Mees. and Wels. 421, so much relied on by the appellee, and in which case all the authorities, English and American, were fully examined, and we said, though this point was not in the case, we were inclined to yield to the force of the reasoning of the English courts, on principles of public convenience, if no other, and to hold, when a carrier receives goods to carry, marked to a particular place, he is prima fade bound to carry to and deliver at that place. By accepting the goods so marked, he impliedly agrees so to do, and he ought to be answerable for the loss.
Again, in the case of the same company against Johnson, 34 ib. 389, there was an express understanding to transport the goods to Wheeling, but the court, referring to Copeland’s case, supra, considered that case as holding that a carrier who receives goods to carry, marked to a particular place, was bound to carry to, and deliver at, that place—that it was an agreement implied from the mark or direction on the goods, and accepting them so marked, that the liability arose.
Now, on the point of public convenience, which consideration had great weight with us in determining which rule should be adopted, it seems to us that consignors of the productions of our country, or other property, by railroad, should not be required, in case of loss or damage, to look for remuneration to any other party than the one to which they delivered the goods.
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Mr. Chief Justice Breese
delivered the opinion of the Court:
The question presented by this record, is one of great importance to the public, and to the railroad interests of the country, and has received our most careful consideration.
It is a question on which the courts of this country are not in harmony with themselves, nor with those of England, to whose decisions we are accustomed to refer as evidence of what the common law is, on any subject which has engaged their deliberations.
The question is, as to the extent of the liability of a railroad company as common carriers of goods and property.
While there is no difficulty in defining, in general terms, when the liability of a common carrier begins, the courts of this country are not agreed as to the point when it terminates.
A common carrier is defined to be one who undertakes, for hire, to transport the goods of such as choose to employ him, from place to place. Eailway companies are under obligations to receive and transport all goods which may be offered to them for such purpose, and without delay. They can not lie by, as the wagoners in early times were accustomed to do, for a rise in the price of freights. They are regarded by all courts as common carriers, resting under a duty to transport such articles as may be delivered to them in the course of their business, and their liability commences when the goods are delivered to their agent authorized to receive them. They may demand the freight money in advance, and if not paid, may refuse to carry the goods, but when they are received they are at the risk of the carrier, and from which time he is regarded as an insurer, and held to the most stringent responsibilities, from which he can only be relieved by the operation of one of two causes, the act of God or the public enemy. Public policy has always demanded this rule, inasmuch as the goods are entirely in the power of the carrier, and it being so easy for him to conceal his fraud or misconduct, and so difficult for the owner to prove it, that the law does not permit the inquiry, but supplies the want of proof by a conclusive presumption. Porter v. Chicago & Rock Island R. R. Co. 20 Ill. 407; Baldwin v. American Express Co. 23 ib. 197.
The liability of the carrier commencing with the receipt of the goods, it necessarily continues until they are delivered by him at their place of destination, where the owner or consignee is bound to be present and receive them, and pay the freight for them, if not previously paid. If he be not present to receive the goods, they can be placed in a safe and sufficient warehouse, when the liability of the carrier ceases and that of warehouseman begins.
The important question now arises, is he thus bound to carry and deliver to a point or place not on his route ?
This is a question not settled by the courts of this country, though the received doctrine may be said to be, that the carrier, is not responsible beyond his own route, except upon his special undertaking so to be liable.
By the law of common carriers, their liability was fixed on the receipt of the goods to be carried. They are insurers of the goods, and if not delivered at their place of destination, they are accountable for them, and when called upon to account for them, the onus of proof is upon them, and they are chargeable with their value, unless the loss was caused by a force superior to human agency, which no foresight could have guarded against, or by the public enemy.
This is the extent of the liability of common carriers by the common law. The receipt of goods by them is all that is necessary to fix this liability, so that, if a parcel or package be delivered to a railroad at Chicago, marked for Louisville, Kentucky, or any other place off their route, and they receive it to carry, they are bound, by this rule of the common law, if the parcel or package be lost, to account to the owner for its value. The contract of the shipper is with the carrier in whose custody he placed the goods.
A responsibility so vast being cast upon carriers by the common law, it soon became a question how they could remove or lessen it. A resort was had to a general notice, which was held by this court and other courts to be insufficient. Western Transportation Co. v. Newhall, 24 Ill. 466. But it was held by this court, in the ease of the Illinois Central R. R. Co. v. Morrison et al. 19 ib. 136, that such carriers may relieve themselves from their general liability by special contract. In that case Morrison, by his writing, under seal, in consideration of a reduction of the freight charges upon a lot of cattle, assumed the risk of transportation, and released the company from all claims which might arise from damage or injury to the stock while in the cars, or for delay in its carriage, or for escape from the cars, and, generally, from all claims except such as might arise from the gross negligence or default of the agents or officers of the company.
We have examined all the cases cited upon both sides of this question, and pondered them, anxiously desiring to recognize a rule which, while it shall not perplex and injure the commercial interests of the country, shall, at the same time, protect the carrier’s interest, or, at least, be of so much service to it that the proprietors of that interest may know and understand the full extent of their obligations to the public.
So long ago as 1860, this court, in the case of this same company against Copeland, 24 Ill. 332, expressed a decided partiality for the rule in Muschamp’s case, 8 Mees. and Wels. 421, so much relied on by the appellee, and in which case all the authorities, English and American, were fully examined, and we said, though this point was not in the case, we were inclined to yield to the force of the reasoning of the English courts, on principles of public convenience, if no other, and to hold, when a carrier receives goods to carry, marked to a particular place, he is prima fade bound to carry to and deliver at that place. By accepting the goods so marked, he impliedly agrees so to do, and he ought to be answerable for the loss.
Again, in the case of the same company against Johnson, 34 ib. 389, there was an express understanding to transport the goods to Wheeling, but the court, referring to Copeland’s case, supra, considered that case as holding that a carrier who receives goods to carry, marked to a particular place, was bound to carry to, and deliver at, that place—that it was an agreement implied from the mark or direction on the goods, and accepting them so marked, that the liability arose.
Now, on the point of public convenience, which consideration had great weight with us in determining which rule should be adopted, it seems to us that consignors of the productions of our country, or other property, by railroad, should not be required, in case of loss or damage, to look for remuneration to any other party than the one to which they delivered the goods. It would be a great hardship, indeed, to compel the consignor of a few barrels of flour, delivered to a railroad in this State, marked to New York city, and which are lost in the transit, to go to New York, orto the intermediate lines of road, and spend days and weeks, perhaps, in endeavors to find out on what particular road the loss happened, and having ascertained it, in the event of a refusal to adjust the loss, to bring a suit in the court of New York for his damages. Far more just would it be to hold the company who received the goods in the first instance, as the responsible party, and the intermediaté roads its agents to carry and deliver, and it is the most reasonable and just, for all railroads have facilities not possessed by a consignor, of tracing losses of property conveyed by them, and all have, or can have, running connections with each other. Above all, when it is considered the receiving company can, at the outset, relieve itself from its common law liability by a special and definite agreement, such a rule can not prejudice them. The rule being known, all parties can readily accommodate their business to it, and no inconvenience can result to any one from its operation.
In the case of the Illinois Central R. R. Co. v. Morrison, 19 Ill. 136, there was a formal stipulation under hand and seal, by which the consignor, for a valuable consideration, agreed to release the company from their common law liability as carriers.
In Adams Express Co. v. Haynes, 42 ib. 89, it was said, if a shipper takes a receipt for his goods from the company, with a full knowledge of its terms and conditions, intending to assent to the restrictions contained in it, then it becomes his contract as fully as if he had signed it.
By such a contract, the rights and duties of the parties to it must be governed, and if the stipulations in it go to limit the common law liability, and they plainly appear in the instrument, and are not covertly inserted in it, and are understood by the consignor, then it must be enforced as any other contract of parties made in good faith.
Testing this case by these considerations, the receipt or bill of lading executed by appellants and accepted by the .consignors, reciting, as it does, that the goods in question were consigned to Pana, and charges paid to that point, and that appellants should not be liable for loss or damage save on their own road, amounts to a special contract, relieving the company from their common law duty.
It is a question for the jury to determine, whether the terms of the receipt were understood by the consignors and assented to by them. If they were, they are bound by them.
The fact that the charges were guaranteed from Pana, was not for the benefit of appellants, but for the benefit of the connecting road, whose usage was to decline the receipt of perishable articles, as these were, unless the charges were guaranteed.
We think justice would be promoted by sending this cause back for trial, in the light of the views here presented, and of the rule we think necessary to be established for the government of all such transactions, and for that purpose reverse the judgment and remand the cause.
Judgment reversed.
After the foregoing opinion was prepared, a re-argument of the case was had, at the January term, 1871, before the court as at present organized under the new constitution, when the opinion was agreed to by a majority of the court, Mr. Chief Justice Lawrence and Justices McAllister and Thornton, dissenting.