, 1872-12-27
TIE Liability Ct Chipping Companies
for Lesses Arising Through
Negligent Delay.
The Value Of a Release-Note Where
a Company Fails to Use
Due Diligence.
An Important Decision on
New Grounds by Judge
Rogers.

EaT Company. III WHICH cousitti1ole lutetceL
has been felt By the mercantile community. In
doing tlis,-so ezhausti;ely that we regret |
space does not allow us to follow him,--His
Honor spoke in effect Us follows:
THE DECISION.
The plaintiff Wilcox. being about to remove
from the State OF New York to the State Of Iowa,
on the ed September, 1871, shipped several
boxes Of goods from Friendship, n. T., station
on the Erie Railroad, marked ''A- J. Wilcox,
Eckley, Iowa" taking receipt from the Erie
Railway Company, by winch that Company
agreed to forward the goods from Friendship
to Cleveland upon certain conditions therein
EXPRESSED and not material to be stated. At tho
same line tie agent Of the Company presented
to the shipper writing follows: In
consideration of the EI.c Railway Company
receiving for transportation two boxes and one
bbl., to be shipped 20 EctIey, Iowa; at reduced
rates ct owners risk, and upon the basis Of this
agreement. the undersigned hereby releases SAID
Erie Railway Company from all liability for dam
age, delay or loss OF any kind, whether arising
from regLgence or fault Of any such Company,
or its agents CT employees, or from any other
cause. and agrees to pay freight at reduced
rates." which was signed by the plaintiff: The
charges were not then paid, but were marked on
the expense bill sent with the goods, and we're
at reduced rates-about one-lalf of tho usual
charges On way freight y }len sent without such
agreement. The agent at Friendship stated
tina: Wilcox told him to mark them - 4. J. VII
cox, Eck'ey Iowa." and that he did so. The
goods we're sent from Friendship on the 25th
day OF September, and reached Chicago, On
tie lst day Of October, 1871. Tho freight
agent here OF TIE Railroad Company which
them shipped over the Illinois Central Railroad
to Iowa, but the freight agent Of that COM
p2uy declined to receive them as he know Of no
such place as Eckloy in Iowa, and they we're held
to ascertain the correctness of tue direction.
There was in fact no Eckley, but there WAS IN
Ackley in Iowa. On tile LIST, certainly not later
THAI lie I'd day OF October, the freight agent
Ct Chicago sent telegram to friendship, n.
1 oas easn9 T. pa sueG eipnss paes as no
Ackley intended" Tho agent ct friendship on
the receipt of this despatch Instituted inquiries
and tried to Gnd persons in and around Friend
ship who could tell, as to the proper place they
should be sent and also Examined Map and
Shippers Guide as soon as ha got the despatch.
His Inquiries of persons resulted III nothing.
but lie did learn from the Nap and Shippers
Guide Gas had the Chicago ngenD that
Eckley. He did not answer this despatc1dth or
he received second one, and then o9F.' This
7th OF October replied, "Seud tQ.ere on the day
answer must hare been receE5ent only found it
it WAS sent, bat the f1Gr October, one or two
out on the 10th orr lire. lie was not the officer
days after tkeLclved the despatch. The boxes
VINO sent ent on, and we're burnt up in the Chi
we're rs of the 9th Of October, 1871. Upon
20 1AElB lNO tiucSklO1l5 di1Ets
II. Was there negligence upon the part Of tho
Railroad Company?
?. II 20, did the writing given by Wilcox re-
lease i: from responsibility for such negligence?
that there was 10 negligence at all, or if any,
only slight or ordinary negligence, and that the
release IS good and protects the defendant from
liability for the loss. That tnero was mistake
made in marking the boxes Eckley instead of
Ack!ey, there is no doubt. Tho agent Of the de-
fcndaut Company in his testimony swore that
Tie plaintiff told him to mark them Eek
ley. It does not appear, that Wilcox
they we're 60 marked. That :Ackley is and
was the true destination is positively certain,
and Wilcox must have known it and must have
so told the agent, but he caught the sound
: Eckley, and SO wrote it. It was an orthograph-
cal mistake made by Fries the agent, IN not
catching the true pronunciation Of the name.
This is not singular or strange.
'sBoth our orthography and pronunciation Of
many words are extremely Irregular" says
Webster; and this, not among the ignorant and
uneducated alone, but the educated, also-eyen
photographers. Walker differs from Sheridan,
johnson from Walker, and Webster from each
Of places and persons is arbitrary. There are
no well established rules therefor and mistakes
often occur. Then, the sound is frequently mis-
apprehended, and one who attempts to spell from
sound will be guilty of errors in true orthog-
raphv, however correct he may be in phonetics.
His Honor here continued minutely to ana
lyze the nature OF the sound Of letters, and then
proceeded.l
But take stronger ground, and feel bound to
hold the defendant and the connecting railroad
lines guilty Of negligence, in not, upon the
knowledge they had on tho 1st OF I'd of the
month, sending On the goods; and if am right
in this, then the negligence was gross. If there
was gross negligence, IS I think there was, then
it is admitted that the release does not avail the
1cfandant; and might content myself with
placing my decision upon that ground. But
1ri13t 3trr f- f~r{} o,,5an th0f
falls within the degree OF negligence called ordi-
nary, still the release cannot be bar to plain
tiff s recovery, under the principles Of law as
tablished or recognized by the courts Of last
resort in this country or in England y. = =
The Read case-37 Ills, 434-is the strongest one
in favor Of the claim Of the defendant that com.
mon carriers can, BY special agreement, exempt
themselves from liability for damages occasion.
ed by any other species or dcsroe Of negligence
not denominated grose." The plaintiff in that
case, being passenger with : free pass receiv-
ed injuries while travelling in tho cars, OCCASION
ed by collision Of trains On the back Of the
pass WAS an endorsement to the effect that he
assumed all risks Of accidents and agreed
that the Company should not be liable under
any circumstances whether Of negligence Oh
otherwise, for injury to the person. It wss
Company from liability for gross negligence,
but did exempt 1t from any other degree Of neg.
Igence, or from liability on account Of unayoia-
able accident. This would be authority di
1ectly applicable to tho before this Court
and would be decisive Of it unleas the negligence
complained Of WAS gross, except for the
material fact that the ono, Read, wat
. passenger, travelling upon a free pass-a gra
tuity-and in the other, Wilcox, had contracted
for the transportation OF freight, and was boune
to pay for the carriage Of his goods. But for the
gratuitous presentation OF the pass, and it's &C.
ceptance and use by Rend, tho endorsement on
it would have been notice mainly, and not 9
contract. A common carrier is not bound b.
law to receive and carry passenger FREQ o1
charge. For this reason, it has right to i'm
pose any terms it mny please to exact, Of one
who accepts the gratuity and rides upon fret
pnss- But it is different with the passenger fo
hire, and the shipper who offers freight and pro
poses to pay for its carriage; in that case th'
carrier is bound by law to receive and carry tht
passenger or the goods, and should not be, ant
is not, in my opinion, permitted to con
tract for any exemption from lia
bilty for damages occasioned by negligence
Of any degree. There can be no doubt that th
Supreme Court in this case OF Read, attached
great importance to the fact that he was pas
senger, enjoying the free and gratuitous bount.