of road and cannot be made to extend beyond it. Nor can they be compelled to purchase for the accommodation of the public more extended privileges beyond the limits of their franchise. In order to compel a railroad company to deliver grain, shipped in bulk, at a certain elevator, it is necessary that the elevator be connected by some track with the railroad line of the company and so situated as to be considered a part or portion thereof.1

§ 285. In determining the extent of the liability of the railroads in this regard, account must be taken of what they have been accustomed to do. If a railroad company has been wont to run its cars upon a side track to a private warehouse to receive or discharge freight, then it must do this whenever and as required.2 Railroad companies cannot disregard the custom of conveying grain in bulk over the lines of their own roads and delivering it at any elevator thereon to which it may be consigned. If it is consigned to warehouses off or beyond their road they can refuse to receive it in bulk. 3

§ 286. For unnecessary delay the railroad company will be liable. It is their duty to deliver all goods with reasonable dispatch. If the market value of the shipment was greater on the day the consigment should have reached its destination than it was on the

1

1 People et al. v. Chicago and Alton R. R. Co. 55 Ill. 95

2 Galena and Chicago Union R. R. Co. v. Rae, 18 Ill. 488; Woodbury v. Frink, 14 Ill. 279; Chicago and Rock Island R. R. Co. v. Warren, 16 Ill. 502.

People et al. v. Chicago and Alton R. R. Co. 55 Ill. 95; Gross' Statutes, vol. i, p. 537.

day of actual arrival, the difference may be recovered from the railroad company.1

§ 287. If a delay be caused by an unusual press of business, it will not render the common carrier liable for any incidental loss. All that is required from the carrier is that the delivery be reasonable. The receipt by the owner of a part of the goods in transitu does not discharge a railroad company from liability for the remainder.

§ 288. In the case of perishable consignments, fresh peaches for example, the railroads claim the right to exact pre-payment. The freight might lose all its value in transit, and that without any fault on the part of the carrier. Another class of goods, such as eggs and glass, may become valueless in transit, but not if properly carried. The court concedes the justice of exacting pre-payment of freight charges in some

cases. 2

§ 289. A bill of lading is held to be prima facie evidence of the actual receipt of the goods and of their receipt in good order. Those presumptions may, however, be rebutted by evidence that the shipper, or previous carrier, practiced deceit and fraud, or that the goods received injury prior to their actual delivery. Testimony to sustain such an allegation is always admissible. But the courts are cautious in allowing

excuses.

3

§ 290. If the carrier takes goods from a bailee he cannot escape liability for negligence on the ground

1 Lowe v. Moss, 12 Ill. 477; Chicago and Mississippi R. R. Co.

v. Dunbar, 20 Ill. 623; Gross' Statutes, vol. i, p. 549.

2 Galena and Chicago Union R. R. Co. v. Rae, 18 Ill. 488.

3 Great Western R. R. Co. v. McDonald, 18 Ill. 172

that the real title to the goods was in the bailor. This rule has an exception, namely: when the goods had been actually taken out of the possession of the carrier by the bailor, without any injury or injustice to the consignor. "So far as the carrier is concerned, in such case, the consignor is the bailor of the property. Even if the bailor was not the owner of the bailed property the bailee must restore it to him, unless some special reason to the contrary can be shown."1

§ 291. Treating of excuses has thus led to a consideration of the relative rights and powers of consignors and consignees. It sometimes happens that while the goods are in transitu the consignor wishes to change their destination. The railroad company, being the agent of the consignor, is obliged to obey his order. This has been known to occur even when the consignee first designated had accepted bills drawn on him by the consignor. Of this transaction the carrier knew nothing, being obedient to the command of the consignor up to the time of actual delivery, and so delivered the goods according to direction of the one having absolute control. An action for loss of property, or any injury thereto, may be maintained against the railroad company by anyone having a general or special ownership in the goods lost or damaged. Even a bailee or agent entitled to the possession of the property may bring the suit. The consignor, though only a bailee, would also have this right. The real owner would, of course, have a good cause of action for any loss sustained.3

3

1 Great Western R. R. Co. (1859,) v. McComas, 33 Ill. 185.

2 Lewis v. Galena and Chicago Union R. R. Co. 40 Ill. 282.

3 St. Louis, Alton and Terre Haute R. R. Co. v. Linder, 39 Ill.

1

§ 292. Notwithstanding the absoluteness of this control on the part of the consignor, the carrier has a lien upon the goods until the freight charges have been paid. A change of consignment often leads to litigation commenced by the consignee first designated against the carrier. If the allegation of non-delivery per consignment is made, the burden of proof rests upon the complainant. If the allegation is that the goods were not delivered in good condition, as the bill of lading called for, the burden of proof is on the carrier. There may have been some special directions in regard to the consignment. If the carrier accepted the goods with those peculiarities, he is bound to carry out the contract in good faith and to the letter.3

2

$293. More frequently there is in the bill of lading special exemptions, instead of special obligations, and in the construction and enforcement of these exemptions the policy of the court is somewhat different. The carrier is not allowed to evade the usual obligations of his business, pleading in justification the wording of the bill of lading. "The common law liability of the carrier cannot be evaded by notice." general notice certainly will not work exemption, nor will it even modify or restrict the common law, although known to the shipper, unless the express acceptance of the exemption can be proved, an acceptance of such a nature as to constitute a special contract.4

'Galena and Chicago Union R. R. Co. v. Rae, 18 Ill. 488. 2 Woodbury v. Frink, 14 Ill. 279.

A

Michigan Southern and Northern Indiana R. R. Co. v. Day, 20 Ill. 375.

* American Merchant's Union Express Co. v. Schier, 55 Ill. 140; Western Transportation Co. v. Newhall, 24 Ill. 466; Illinois Central R. R. v. Morrison, 19 Ill. 136.

§ 294. If a special contract is claimed it is then a question for the jury to decide whether the exemption in dispute was actually assented to by the shipper. It is also for the jury to decide whether the goods were shipped under a prior verbal contract which had no such limitations or restrictions. The mere delivery of the receipt with such restrictions is not proof that the shipper assented to them. And even if the assent were complete, the contract is not valid if its scope is to excuse the carrier from gross negligence or willful default, such a contract being contrary to good morals and public policy.1

$ 295. The proof that the company is accustomed to give a bill of lading exempting it from certain kinds. of loss is not sufficient to work exemption. In a "through freight contract" and in through cars it may be customary to specify in the bill of lading that the carrier is restricted in his liability to loss or damage on his own line and yet he will really be liable to the end of the route.3

§ 296. It is quite common to send packages marked "C. O. D."4 The acceptance of a package so marked is held to be a contract on the part of the carrier to

1 Baker v. Michigan Southern and Northern Indiana R. R. Co. 42 Ill. 73; Adams Express Co. v. Haynes, 42 Ill. 89; Illinois Central R. R. Co. v. Frankenberger, 54 Ill. 88; Illinois Central R. R. Co. v. Adams, 42 Ill. 474.

2 Illinois Central R. R. Co. v. Symser, 38 Ill. 355.

3 Illinois Central R. R. Co. v. Johnson, 34 Ill. 389. The constitutional question touching through freight is discussed in Toledo, Peoria and Warsaw Ry. Co. v. Merriman, 52 Ill. 123.

* As a matter of fact such consignments are almost always sent by express companies; but the law is equally applicable to railroad companies.