Great Western R.R. Co. v. Morthland
Citation | 20 Peck 451,1863 WL 3063,30 Ill. 451 |
Parties | GREAT WESTERN RAILROAD COMPANY, Plaintiffs in Error,v.SAMUEL MORTHLAND, Defendant in Error. |
Decision Date | 31 January 1863 |
Court | Supreme Court of Illinois |
30 Ill. 451
1863 WL 3063 (Ill.)
20 Peck (IL) 451
GREAT WESTERN RAILROAD COMPANY, Plaintiffs in Error,
v.
SAMUEL MORTHLAND, Defendant in Error.
Supreme Court of Illinois.
January Term, 1863.
Where the evidence shows that a horse got upon a railroad track within the corporate limits of a city, and was driven by the train and finally killed, at or beyond the city limits, and there was no evidence of negligence on the part of the company: Held, that the owner could not recover. The question whether the track was fenced where the accident occurred, could not affect the liability of the company, because the horse got upon the track where the company was in no event bound to keep up a fence.
The mere killing of an animal by a railroad company, does not render the company liable, unless it has been guilty of negligence, or the case comes within the statute of 1855.
THIS was an action of trespass on the case brought by the defendant in error, Morthland, to the November term, 1861, of the Macon Circuit Court.
[30 Ill. 452]
The declaration contains two counts. In the first, it is alleged, that on the 16th day of October, 1860, the defendant had possession and control of the “Great Western Railroad,” and had the right to use and operate the same, and run engines and trains, etc., thereon, and that he did so use the same; that the said road had been open for use more than six months prior to the committing of the grievances, etc.; that it was the duty of defendant to erect, and keep in good repair on each side of said road, fences, sufficient to prevent horses, cattle, sheep, and hogs from getting on said railroad, except at the crossing of public roads, and within the limits of towns, cities and villages, with opening gates or bars at farm crossings, etc., and to construct and maintain, at public road-crossings, suitable and sufficient cattle-guards, etc., and to erect and maintain such fences on all unenclosed lands within five miles of any settlement, etc., and except what owners of lands had fenced, or agreed with said company to fence, etc.; that, nevertheless, defendant failed to perform these various duties, by means whereof the horse of the plaintiff, of the value of $150, strayed and got on to said railroad on the day and year aforesaid, and on divers other day since, and that the defendant, by its servants, so carelessly, negligently, and improperly run, conducted, and directed the engines and trains of defendant, that by means thereof and through such carelessness, neglect and improper conduct of said servants run the engine upon the horse of plaintiff, by and through the neglect of defendant to erect and keep in repair, etc., and did thereby kill the said horse for the want of good fences without the limits of cities, towns and villages, and within five miles of settlements on and along said road, and for the want of cattle-guards, etc.The second count alleges that the horse was killed by means of the gross willfulness, carelessnes and neglect of the servants of defendant in running the engines and trains.
Plea, Not guilty.
Trial. Verdict for plaintiff; motion for a new trial overruled, and judgment for plaintiff, and exception by defendant.
The evidence for the plaintiff below was as follows:
[30 Ill. 453]
Henry Waggoner, witness for plaintiff, went with him about one-fourth of a mile east of the depot, at Decatur, where plaintiff's horse was said to have been killed; saw signs--hair, blood and part of a saddle girth on road ties; this...To continue reading
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