Chicago v. Hart

Decision Date31 May 1883
Citation13 Ill.App. 186,13 Bradw. 186
PartiesCHICAGO AND NORTHWESTERN RAILWAY COMPANYv.CORNELIUS HART.
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Winnebago county; the Hon. WILLIAM BROWNE, Judge, presiding. Opinion filed July 27, 1883.

Mr. B. C. COOK, for appellant; that if the cattle-guard was good and sufficient to turn the colt under ordinary circumstances, the company is not liable if the colt becoming frightened was injured in it, cited C. B. & Q. R. R. Co. v. Farrelly, 3 Bradwell, 61; C. & A. R. R. Co. v. Rice, 71 Ill. 567; C. & A. R. R. Co. v. McMorrow, 67 Ill. 218; L. P. & B. R. R. Co. v. Caldwell, 38 Ill. 280; Wabash R. R. Co. v. Brown, 2 Bradwell, 516; R. R. Co. v. Utley, 11 Ill. 410.

It was error to permit appellant's servant to testify as to his opinion: M. C. R. R. Co. v. Carrow, 73 Ill. 348; Lendbloom v. Ramsey, 75 Ill. 246; C. R. I. & P. R'y Co. v. Bell, 70 Ill. 102; Flansburg v. Basin, 3 Bradwell, 531; C. & N. W. R'y Co. v. Fillmore, 57 Ill. 265; R. R. Co. v. Hunter, 33 Ind. 354; R. R. Co. v. Therabold, 51 Ind. 249.

It is not sufficient merely to show that the fence was defective, but it must appear that the animal got upon the track in consequence of such defect: Morrison v. N. Y. C. R. R. Co. 32 Barb. 568; Bennett v. R. R. Co. 19 Wis. 145; R. R. Co. v. Northland, 30 Ill. 451.

Mr. J. C. GARVER, for appellee; that an instruction not based upon the facts should be refused, cited O. & M. R. R. Co. v. Jones, 63 Ill. 472.

Where the evidence and circumstances in evidence most reasonably lead to the conclusion of the jury, the verdict should not be disturbed: Wiggins Ferry Co. v. Higgins, 72 Ill. 517; Green v. Lewis, 13 Ill. 620; Andes Ins. Co. v. Fish, 71 Ill. 620.

LACEY, P. J.

This was a suit commenced before a justice of the peace and by appeal was brought to the circuit court.

The appellee sought to recover the price of two colts claimed to have been killed by appellant's engine and locomotive at or near to a railroad crossing. The colts were respectively valued at $80 and $15, and the jury found for appellant as to the smaller and less valuable of the colts, it having been killed on the crossing on the public highway. There was a verdict against appellant for $80, the value of the larger colt. The only negligence charged against the appellant was in not properly constructing and maintaining a proper cattle-guard on the west side of the highway over which, being in a defective condition as is claimed, the larger colt passed from the highway west on the appellant's right of way and on the track where it was struck and killed by a passing train.

The only evidence that the cattle-guard was not sufficient to turn ordinary stock was the fact, if such fact was proved, that the colt passed over it and got from the highway on the railroad track, on appellant's right of way.

The proof as to whether the colt did pass over it is quite weak, though it may have been sufficient to justify the jury in so finding. But if that point be conceded it does not by any means follow from that fact alone...

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