30 Ill. 451 (Ill. 1863), Great W. R. Co. v. Morthland

Citation:30 Ill. 451
Opinion Judge:CATON, C. J.
Party Name:GREAT WESTERN RAILROAD COMPANY, Plaintiffs in Error, v. SAMUEL MORTHLAND, Defendant in Error
Attorney:TUPPER & NELSON, for Plaintiffs in Error. S. G. MALONE, for Defendant in Error.
Court:Supreme Court of Illinois
 
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Page 451

30 Ill. 451 (Ill. 1863)

GREAT WESTERN RAILROAD COMPANY, Plaintiffs in Error,

v.

SAMUEL MORTHLAND, Defendant in Error

Supreme Court of Illinois, Springfield

January, 1863

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ERROR TO MACON.

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.

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 town, 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, carelessness 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:

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 was more than one hundred yards from any public road; horse worth $ 135; thinks horse was in cattle-guard when struck by train; saw fresh horse manure and horse tracks in cattle-guard; the guard reaches across the track, is some five or six feet wide, and eighteen or twenty inches deep; was covered with slats on one side and open on the other; there is a line of fence running nearly north and south across the road at this point, but it does not pass directly across. Some eight or ten feet from the road the fence on both sides bends east for a couple of panels and joins cattle-guard in shape of a funnel, the guard being a few feet east of the general direction of the fence. This is outside of the city limits. The horse seemed to have been thrown from the track fifty or sixty feet east of guard; signs of hair and blood from the guard to that point; there were...

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