property are special and peculiar, and are actual and physical, and not such as will be caused to property generally in the vicinity; that by the operation of petitioner's road, soot, cinders, smoke, etc., will be thrown upon respondents' property north of Tilden street, and will materially affect and lessen the market value of the same $50,000 or more. On a trial before a jury the appellants offered to show the damage to the property north of Tilden street by reason of the construction and operation of the railroad

25.0

Br

22.7

5029

15030

ST.

273

ST.

49.79

49.79

(362.72)

34.638

140

MORGAN

66

E. H. Gary, for appellants. E. J. Harkness and W. W. Gurley, for appellee.

CRAIG, J. (after stating the facts). Section 13 of article 2 of the constitution provides: "Private property shall not be taken or damaged for public use without just compensation. Such compensation when not made by the state shall be ascertained by a jury as shall be prescribed by law." It will be observed that no part of the block of ground north of Tilden street was taken by the railway company, but, as has been seen, the railway company took only a part of lot 6, which is separated from the block by a street. Whether appellants' block lying north of Tilden street has been or will be damaged by the construction and operation of the railway in and over a part of lot 6 is not the question presented by this record, but the question here involved, and the only one, is whether appellants are entitled to recover whatever damages they have sustained, if any, in this proceeding. In Stetson v. Railroad Co., 75 Ill. 74, a bill was filed by a lot owner who owned lots fronting on the street to enjoin the construction and operation of a railroad in the street under an ordinance passed by the city of Chicago until the damages should be ascertained and paid. There no part of the lots had been taken, and the fee of the street upon which the railroad was constructed was in the city. It was held, first, that a court of equity had no jurisdiction; that the complainant's remedy was at law; and in discussing the right of one to recover damages to property not taken under the eminent domain act it is said: "A portion of the land having been taken, the remainder may be damaged in consequence of the taking. When the party seeking to make the condemnation has not embraced all of the owners of contiguous lands not actually taken but damaged, the owner may file a petition in the nature of a cross petition.

It must be in this sense the word 'damaged' is employed in the act to provide for the exercise of the right of eminent domain. The damages are direct and physical, and result from the taking of a portion of the land. But when no portion of the land is taken, and the damages suffered are consequential by reason of what the corporation does upon its own land or that of another, it does not seem there is any warrant for instituting proceedings for the ascertaining of such damages." The rule declared in the Stetson Case was approved in Railroad Co. v. Schertz, 84 Ill. 135. In the discussion of the same question in Insurance Co. v. Heiss, 141 Ill. 55, 31 N. E. 138, it is said: "It has been repeatedly held that a railroad company acquiring the right to lay its tracks in the streets of a city is not required to institute condemnation proceedings in respect of damages which may accrue to owners of property abutting such streets; and where no part of

the land of an abutting lot owner is entered upon or sought to be condemned for public use the owner is not entitled to have proceedings instituted under the eminent domain law to ascertain what damage his property has suffered in consequence of the construction and operation of a railroad,

but the landowner is remitted to his action at law to recover his damages." In Parker v. Catholic Bishop, 146 Ill. 160, 34 N. E. 473, it was held: Where no part of the land or property of the complainant owner is physically taken for or in making the proposed improvement, and the damages claimed to result are consequential only, the provision of the constitution relating to eminent domain does not require the ascertainment and payment of such damages as a condition precedent to the exercise of the right or power. The damages referred to in the constitution are direct and physical, resulting from a taking of a portion of the land; and, when no portion of the land is taken, the damages suffered are consequential, and condemna. tion proceedings are not required to be instituted to ascertain the same. It is sufficient to answer the constitutional requirement that a remedy is provided for the recovery of such damages by an action at law.

The principle announced in the cases cited would seem to control the question presented by this record. The land north of Tilden street, alleged to have been damaged, was not contiguous to that portion of the lot taken by the railroad company, as it was separated by a street the fee of which was in the city of Chicago, and no part of that ground was taken. The damages suffered to the property north of Tilden street were not direct, resulting from a taking of a part of that land, but were consequential, and the railway company was not required to include that property in its petition for condemnation; nor could appellants, by cross petition, compel the adjustment of damages to property no part of which had been taken, and which was not contiguous to the property taken. If by the construction and operation of the railroad on the lot south of Tilden street the property of appellants lying north of that street will be specially damaged, and the damages sustained by appellants are not common to the public, they have a complete remedy in an action at law to recover all damages sustained; but where proceedings are instituted under the eminent domain act to condemn one lot or tract of land, the owner cannot bring into that proceeding another tract of land, not contiguous and not connected with the land condemned, no portion of which has been taken, and recover such con sequential damages as he may have sustained. But it is said the two tracts of land were purchased to be used for one purpose as one tract of land. Whatever may have been the intention or purpose in purchasing the two tracts of land can make no difference. The

two tracts of land must be considered as they existed when the proceeding was instituted. At that time they were separated by a public street. They were in no manner connected, and never could be connected without the consent of the city, which may never be obtained. They were not used for any common purpose as one tract of land. Two tracts of land might be so connected and used as to constitute but one tract, and in such a case, in a proceeding to condemn a part, it would be proper to consider the damages to the whole; but this record presents no such case. No fault is found with the judgment for the land taken and damaged south of Tilden street. As no error is perceived in the ruling of the court in the exclusion of evidence as to the tract of land north of Tilden street, the judgment will be affirmed. Affirmed.

(152 Ill. 4841

WABASH R. CO. v. BROWN et al.1 (Supreme Court of Illinois. June 16, 1894.) CARRIERS OF GOODS-NEGLIGENCE-CONTRACTS LIMITING LIABILITY-WAIVER.

1. Where there is some evidence of negligence, the question whether there was gross negligence is one of fact.

2. A provision in a contract of shipment, limiting the extent of the carrier's liability, is ineffectual where the injury is caused by his gross negligence. 51 Ill. App. 656, affirmed.

3. A contract of shipment provided that the carrier should not be liable for damage unless the shipper presented a verified written claim within five days after receipt of the goods at their destination. Held that, where an unverified written claim was presented within five days, and the carrier received it without objection, and afterwards treated the claim as pending for adjustment upon its merits, the carrier waived the benefit of such provision.

Appeal from appellate court, Third dis trict.

Action on the case by Lloyd W. Brown and E. W. Brown against the Wabash Railroad Company. Plaintiffs obtained judgment, which was affirmed by the appellate court. 51 Ill. App. 656. Defendant appeals. Affirmed.

The appellees, in April, 1892, having purchased in Chicago a number of high-bred cattle for breeding purposes, shipped the same from Chicago to their farm near New Berlin, on the line of the appellant's railroad. The train was made up in Chicago about dark on the evening of the day they were so shipped. The car was an ordinary stock car in which the cattle were shipped, the only car that had live stock in it in the train, and was placed in a train of some 26 cars, the third from the engine. The cattle had hay to eat, and enough more to bed them. When not far from Springfield, at the Illinois Central crossing, one of the appellees saw the train men running to the front of the train, and, supposing something was wrong, ran over the train, and when he came to his car found the engineer and

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

v.39N.E. no.4-18

fireman had just extinguished a fire in the car. The fire was in the northwest corner of the car, which was going west at the time, showing the fire to have started in the end of the car next to the engine. It is claimed there was nothing in the car to start a fire, and the engineer and fireman had just put the fire out by pouring water on it, obtaining the water from the ditch alongside of the railroad, and carrying the water in buck ets from the ditch. Of the five head of fine cattle in the car none were injured save the cow in controversy, the Fourth Duchess of Hillsdale, and she was badly burned, so much that she is practically of no value. The proof shows that the value of the cow was $850. Only two days before she was sold at public auction for that sum. The jury found by their verdict that the damages of appellees was $650.

It is provided in the contract, among other things, that in consideration of a reduced rate of freight: "Tenth. In consideration of the rate aforesaid, it is further agreed that no claim for damages which may accrue to the party of the second part under his contract shall be allowed or paid by the party of the first part, or sued for in any court by the party of the second part unless a claim for such loss or damage shall be made in writing verified by the affidavit of the party of the second part or his or their agent, and delivered to the general freight agent of the party of the first part at his office in the city of St. Louis within five (5) days from the time said stock is removed from said cars. Eleventh. It is agreed that neither the party of the first part nor any connecting line shall be liable for the sum of more than one hundred dollars on account of loss or injury of any one horse or other animal received or carried by the party of the first part under this contract." On the margin of the contract is written in red ink the following: "My special attention has been directed to clause No. 11 limiting the liability in case of accident, and to which condition I knowingly subscribe." The declaration contains two counts, and charges negligence on the part of appellant in permitting sparks and brands of fire to be emitted from its engine, and in placing the car in such close proximity to the engine that the sparks and brands of fire ignited with the bedding in the car, etc. It appears from the evidence that the reduced rate referred to in the contract was a rate of 12 6/10 cents per hundredweight at which cattle were taken, and that the regular rate charged by appellant for the transportation of that number of cattle of the value of the cattle in question, from Chicago to Berlin, without the execution of the special contract, was 70%1⁄2 cents per hundred. E. W. Brown, one of the appellees, testifies he only knew of one rate, that of car-load lots; and that being governed by the size of the car. In all his shipments he never had heard of any other, and ordered a car without saying anything

at Chicago, on cross-examination states that the only rate talked over by him, as agent of appellant, and Mr. Brown, was the carload rate, depending on its being a 30-foot or a 34-foot car, and Mr. Brown took the 34foot car. It appears the only knowledge appellees had of rates was obtained from Mr. Connors, the agent; and it would appear from the evidence that Mr. Brown shipped at the rate mentioned, knowing no other, and that the company had a higher rate, which was much more than the regular rate, to which appellees' attention was not called. It is shown by the evidence that the appellees did not learn the rate until arriving at their destination. A day or two after the injury, one of appellees addressed a letter to the claim agent of the company, which was delivered to the station agent of the company, to be forwarded, in which letter it was stated that the injury had occurred, but the damage could not then be determined, and further communication would be given. On the 12th of October appellees again wrote the claim agent, stating the damage. That agent, on October 13th, acknowledged receipt of the letter, and stated it had been forwarded to the freight claim agent, who had adjustment of such claims. On the 18th of October the freight claim agent wrote appellees, saying the letter of the 12th had been referred to the legal department for advice as to their liability, and, when returned, would communicate further. Appellees recovered a judgment for $650 and costs, which was affirmed by the appellate court. On the trial in the county court appellant asked the court to instruct the jury: That there was no evidence before the jury from which they would be authorized to find that the injury complained of was occasioned by or through the gross negligence of defendant; that upon the pleadings and evidence the plaintiffs were entitled to recover only the sum of $100, as provided in the eleventh clause of the contract; that unless it had been shown that plaintiffs made a claim in writing for the loss, verified by affidavit, and delivered the same to the general freight agent of defendant, at his office in St. Louis, within five days from the time the cow was removed from the car, as provided in the tenth clause of the contract, plaintiffs were not entitled to recover. The appellate court affirmed the judgment of the county court, and this appeal is prosecuted by the railroad company, a certificate of importance having been made by that court.

Geo. B. Burnett and Geo. S. Grover, for appellant. Edward L. McDonald and James N. Brown, for appellees.

PHILLIPS, J. (after stating the facts). The first point made by defendant is there was no evidence before the jury from which they were authorized to find the injury com

ligence of the defendant. This being an action to recover on the alleged ground of negligence of the defendant, if the question is one of fact, this court is bound by the adjudication of the county and appellate courts. Negligence is ordinarily a question of fact. Where the evidence on material facts is conflicting, or where, on undisputed facts, fair-minded men of ordinary intelligence may differ as to the inferences to be drawn, or where, on even a conceded state of facts, a different conclusion would reasonably be reached by different minds, in all such cases negligence is a question of fact. The fact to be determined is the existence or nonexistence of negligence. With all the facts considered, if there is a reasonable chance of conclusions differing thereon, then it is a question for a jury. Negligence may become a question of law where, from the facts admitted or conclusively proved, there is no reasonable chance of different reasonable minds reaching different conclusions. It may also become a question of law if a single material fact is conclusively shown or uncontradicted, the existence or nonexistence of which is conclusive of a right of recovery. The negligence alleged in the declaration in this case and the proof appearing in the record present only questions of fact. Whether there was negligence in allowing the escape of sparks or brands from the engine, or whether there was negligence in placing a car of the kind, with such freight, within three cars of the engine, are questions which, by the ninetieth section of the practice act, must be determined by the inferior and appellate court; and by that section, in this class of cases, no assignment of error in this court shall call in question the determination of the appellate court upon controverted questions of fact. If negligence exists, its degree, whether slight, ordinary, or gross, must always depend upon the evidence, and is not to be determined by the court as a question of law, where there is evidence tending to prove the particular fact.

Under the averments of the declaration and proof in the record there was evidence for the jury to consider, and the sixth of defendant's refused instructions-"The court instructs the jury that there is no evidence before you from which you would be authorized to find that the injury complained of was occasioned by or through the gross negligence of defendant”-was a request for the court to limit the degree of negligence, if any existed, and invade the province of the jury. The instruction does not present the question whether, where a right of recovery must depend upon the existence of gross negligence, it must be specially pleaded; and is not framed so the trial court must on that question express an opinion, as it does not allude to the pleading or issue. The eleventh clause in the contract ex

ecuted by appellant and appellees was as follows: "Eleventh. It is agreed that neither the party of the first part, nor any connecting line, shall be liable for more than the sum of one hundred dollars on account of loss or injury of any one horse or other animal received or carried by the party of the first part under this contract." A provision of a similar character was a part of a contract of shipment considered by this court in Railway Co. v. Chapman, 133 Ill. 96, 24 N. E. 417, where it was held: "No representation was made by appellee or his agent to induce the fixing of the value either of the property shipped or the services of appellant for its carriage. It is insisted that the company had two classifications at the time under which live stock was shipped; that one limited the amount of recovery for a horse to $100 in case of loss, and that in the other class there was no limitation, but a higher freight rate charged. At the time of this shipment no notice was given of any such classifications. The appellant's agent received the property, charged what he saw proper, and made out the bill of lading, without asking any questions as to the value of the property. The fact that such classification existed could in no way affect the plaintiff's right of recovery unless notice thereof had been brought home in some way to the plaintiff or his agent. But it cannot avail, in any event, as against the right of recovery here. Plaintiff was guilty of no misconduct which would estop him from asserting his right to recover the value of his property, and it was unlawful for the railway carrier to contract for the exemption from liability resulting from gross negligence of its servants." The facts here are so similar to the facts in that case that that case, on this point, must be held conclusive. But, regardless of the question of notice to appellees, it must be held that the rule is that a common carrier cannot relieve itself by contract from any portion of the loss sustained by a consignor upon goods in possession of the carrier and being transported by it, resulting from gross negligence. It was not error to refuse the second instruction, which was to the effect that no more than $100 could be recovered.

The defendant asked the following instruction, which was refused, and its refusal assigned as error: "The court instructs the jury that in the contract read in evidence it is provided that no claim for damages shall be allowed or paid by the defendant or sued for in any court by the plaintiffs unless a claim for such loss or damage shall be made in writing, verified by the affidav of the plaintiffs or their agents, and delivered to the general freight agent of the defendant, at his office in the city of St. Louis, within five days from the time the stock should be removed from the car. And the court instructs the jury that unless it has been "shown that the plaintiff made such claim in

writing, verified by affidavit as aforesaid, and delivered the same to the general freight agent of the defendant, at his office in the city of St. Louis, within five days from the time the cow in question was removed from the car, then the law is that the plaintiffs are not entitled to recover, and the jury should find for the defendant." Upon this question the appellate court held: "It is next urged that the appellees were not entitled to recover, because no claim for the loss or damage sued for was made in writing, and verified by an affidavit, and delivered to the general freight agent of the appellant company within five days after the stock was removed from the car, as was required should be done by the tenth clause of the contract of shipment. It was proven that one of the appellees, within less than the required five days, indited a letter to the claim agent of the appellant company, in which he stated the facts of the injury to the cow, and also that the extent of the injury or the amount of damages likely to result therefrom could not then be ascertained, etc. This letter was placed in an envelope, which was addressed to the claim agent, and delivered, within less than five days after the injury, to Mr. Todd, who was the station agent of the appellant company at New Berlin, a station on the line of its road. In October following, the appellees again wrote to the appellant's claim agent, and in this last letter, after reciting the facts of the injury to the cow, said: 'We immediately notified you of the injury, advising you that as soon as the extent of damage could be ascertained we would claim payment for the same.' This letter elicited an answer from appellant's freight claim agent, to the effect that the claim had been referred to the legal department for an opinion as to liability upon the claim, and that the appellees would be informed what action would be taken when the advice of the law officer of the road had been received, and that, if necessary, the writer would visit the appellees at New Berlin, for the purpose of examining the cow, and, if possible, agreeing upon the amount of damage, if the company was liable to pay damages. The letter first written by Mr. Brown was within the five days after the removal of the stock from the car. It was

not verified by an affidavit, and for that reason, and perhaps others, was not in full compliance with the agreement regarding notice. The jury was warranted, however, in believing that the company received it without making objection or pointing out its defects, and afterwards treated the claim as pending for adjustment upon its merits. We think it was rightly held that the appellant company had waived further or other notice of the alleged loss." It is undoubtedly the right of the company to waive this clause in the contract for carriage, and from what is above said by the appellate court that was a question on which that court has passed