
    The Elgin, Joliet and Eastern Railway Company v. The Bates Machine Company.
    
      Opinion filed February 18, 1903.
    
    1. Carriers—liability of carrier for injury to goods in transit. Unless its liability is limited by contract a common carrier is liable for damage to goods in transit, either upon its own line or that of a connecting carrier.
    2. Same—when contract is a “through freight” contract. A contract by which a carrier guarantees a through rate of freight, and undertakes to transport the goods “to destination, if on its road, or otherwise to the place on its road where the same is to be delivered to any connecting carrier,” is a through freight contract, and the receiving carrier is liable beyond its terminus where the goods were carried through in the same car.
    
      E., J. & E. Ry. Co. v. Bates Machine Co. 98 Ill. App. 311, affirmed.
    Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Will county; the Hon. John Small, Judge, presiding.
    J. L. O’Donnell, for appellant:
    A common carrier receiving goods marked to a point beyond the terminus of its own line may limit its liability to safe carriage to the end of its own line by a contract with the shipper, whether in the form of a bill of lading or otherwise. Railroad Co. v. Jaggerman, 115 Ill. 407; Field v. Railroad Co. 71 id. 458; Baxter v. Railway Co. 165 id. 78; Oppenheimer v. Express Co. 69 id. 62; Railroad Co. v. Church, 12 Ill. App. 24.
    Bills of lading are both receipts and contracts. ■ So far as they acknowledge the delivery and acceptance of goods they are mere receipts; as to the rest, they are contracts. Railroad Co. v. Simon, 160 Ill. 648; Hutchinson on Carriers, p. 122; Porter on Bills of Lading, secs. 1, 2.
    The statute of 1874 only prohibits a carrier from limiting its liability in a receipt given for the goods. Rail
      
      road Co. v. Simon, 160 Ill. 648; Railroad Co. v. Church, 12 Ill. App. 24.
    Assent to the terms of a bill of lading is conclusively proven by evidence that the shipper prepared, printed and had the same in his possession. Transportation Co. v. Joesting, 89 Ill. 154; Oppenheimer v. Express Co. 69 id. 62; Field v. Railroad Co. 71 id. 458.
    A common carrier is not liable for an injury to goods caused by the insecure loading of the same by the shipper. Railroad Co. v. Dunbar, 20 Ill. 623; Pennsylvania Co. v. Bridge Co. 170 id. 645; Ross v. Railroad Co. 49 Vt. 364.
    Garnsey & Knox, for appellee:
    The acceptance of the goods by the carrier without exercising his right to refuse them is, in effect, an acknowledgment of their proper condition. Railroad Co. v. Swift, 12 Wall. 262; 5 Am. & Eng. Ency. of Law, (2d ed.)369.
    The receipt given by the carrier was a through receipt on its face, in the absence of evidence of any contract to the contrary. Railroad Co. v. Frankenberg, 54 Ill. 88; Railway Co. v. Merriman, 52 id. 128; Transportation Co. v. Joesting, 89 id. 154; Railway Co. v. Montfort, 60 id. 175.
    Bills of lading may be both receipts and contracts, but unless an express contract is shown to have been affirmatively and understandingly made and the assent of the shipper to its terms is shown, they are not contracts under the rule in this State, and the statute of 1874 will apply. Railway Co. v. Simon, 160 Ill. 648; Field v. Railway Co. 71 id. 462; Railroad Co. v. Stock Farm, 197 id. 9; Railroad Co. v. Chapman, 133 id. 96; Transportation Co. v. Joesting, 89 id. 154; Railroad Co. v. Church, 12 Ill. App. 24; 5 Am. & Eng. Ency. of Law, (2d ed.) 295.
    A common carrier accepting goods for transportation to a point beyond its line is prima facie an insurer of their .safe delivery at the destination marked. Railroad Co. v. Copeland, 24 Ill. 338; Railway Co. v. Merriman, 52 id. 159; Railroad Co. v. Frankenberg, 54 id. 88; Express Co. v. Wilson, 
      81 id. 339; Railway Co. v. Jaggerman, 115 id. 407; Railroad Co. v. Carter, 165 id. 570; Express Co. v. Shearer, 160 id. 220; Fortier v. Pennsylvania Co. 18 Ill, App. 262; Railway Co. v. Harris, 55 id. 159.
   Mr. Justice Ricks

delivere the opinion of the court:

This was a suit begun by aj of Will county, against appella value of a fly-wheel shipped b Louisville, Kentucky. The sh pellant’s railway, and was mou lee on a car furnished by appe, shipment was as follows: (1j ellee in the circuit court t, for the recovery of the appellee from Joliet to ament was made via apted and loaded by appelant. The receipt for the jIBT, III. , July 14, 1899.

“Received from Bates Machine —O. G-. & L. R. R. in apparent ,g the packages described below, (con marked and consigned as indicated to transport with as reasonable dis will permit, to destination, if on r place on its road where same is to ' ing carrier. Through rate of fre hereby guaranteed by this compan 111., to Joliet via Louisville, Ky. '■ompany by the E., J. & E. )d order, except as noted, ents and value unknown,) vhich said company agrees itch as its general business road, or otherwise to the : delivered to any connect-ht as designated below is Rate 15c per cwt. Joliet,

The wheel was carried by ap At that point the car containin over to the Monon road, and wh ellant to Dyer, Indiana, said wheel was turned e in the care of the latter road the wheel was broken ad totally destroyed in value. The cause was submitt 1 to the court without a jury, and there was a finding < d judgment in favor of appellee for §1200. Upon appea, to the Appellate Court the judgment was affirmed.

Two reasons are urged why bhe case should be reversed: First, that the court t red in refusing to find that the liability of appellant b¡ limited to its own line; and secondly, that the proof shows that the proximate cause of the injury to the fly-wheel was the improper loading of the same by appellee.

The bill of lading offered in evidence was a “through freight” contract, and the undertaking of the appellant was to carry the fly-wheel safely from Joliet to Louisville, Kentucky, and it was liable for any injury or damage that mig'ht occur to the goods in transit, either upon its own line or that of a connecting carrier, unless its liability was limited by contract. Chicago and Northwestern Railway Co. v. Simon, 160 Ill. 648; Toledo, Peoria and Warsaw Railway Co. v. Merriman, 52 id. 123; Chicago and Northwestern Railway Co. v. Calumet Stock Farm, 194 id. 9; Illinois Central Railroad Co. v. Carter, 165 id. 570.

In Toledo, Peoria and Warsaw Railway Co. v. Merriman, supra, the bill of lading provided that appellant would transport the freight “over the line of this railway to the company’s freight station at its terminus, and deliver in like good order to the consignee or owner, or to such company, (if the same are to be forwarded beyond the limits of this railway,) whose line may be considered a part of the route to the place of destination of said goods or packages, it being distinctly understood that the responsibility of this company as a common carrier shall cease at the station where such goods are delivered to such persons or carrier.” In that case, as in this, it was contended that appellant was not liable as common carrier beyond the terminus of its road, and that as it was not shown the loss happened on its road appellee could not’ recover. In discussing this question the court said: “This defense is utterly groundless, as the receipt or bill of lading offered in evidence shows upon its face it was a ‘through freight contract,’ and it was in proof by the defendant’s agent that freight received by this company as through freight was never unloaded or delivered at their terminus, but forwarded on to its place of destination in the cars in which it was received.”

We regard the contract in tl much more favorable to appel one now before us. We are una bill of lading which limits the age occurring upon its own li destination on appellant’s roí contract, nor was the road to t to deliver the car for carriage point of destination mentioned of freight that was to be paid connecting carrier stated. In through freight rate of fifteen < fixed. The undisputed evidenc the car in which this wheel wr appellant as a through car, an sent therein to the point of deg evidence tending to show that with this company in shipping to be delivered to connecting lit man case, supra, decisive of the •, case cited, as a contract nt’s position than is the le to find anything in the iability to loss or dam-Neither the ppint of was mentioned in the rich appellant intended rom its terminus to the nor was the proportion 0 appellant and to the ict, there was simply a nts per hundred weight in this case shows that loaded was treated by in fact, the wheel was ination, and there is no ny other rule obtained trough freight that was ?.s. We think the Merri„se at bar,

The defense that the proxim; the fly-wheel was the improper an issue of fact, and this has be to appellant by the trial and A is a conflict of evidence upon tl ing- of the trial and Appellate C e cause of the injury to lading by appellee was n determined adversely pellate Courts. There s issue, hence the findirts is conclusive.

Finding no error in the reco affirmed. 1 the judgment will be

Judgment affirmed.  