74 Ill. 83 (Ill. 1874), Toledo, P. & W. R. Co. v. Johnston

Citation:74 Ill. 83
Opinion Judge:Mr. Justice Breese.
Party Name:THE TOLEDO, PEORIA AND WARSAW RAILWAY COMPANY v. ROBERT JOHNSTON
Attorney:Messrs. INGERSOLL & PUTERBAUGH, for the appellant. Messrs. BLADES & KAY, for the appellee.
Court:Supreme Court of Illinois
 
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74 Ill. 83 (Ill. 1874)

THE TOLEDO, PEORIA AND WARSAW RAILWAY COMPANY

v.

ROBERT JOHNSTON

Supreme Court of Illinois, Northern Grand Division

September, 1874

APPEAL from the Circuit Court of Iroquois county; the Hon. N. J. PILLSBURY, Judge, presiding.

Judgment reversed.

Messrs. INGERSOLL & PUTERBAUGH, for the appellant.

Messrs. BLADES & KAY, for the appellee.

OPINION

Mr. Justice Breese.

This is an appeal from the circuit court of Iroquois county. The judgment was rendered in favor of Robert Johnston, in an action on the case against the Toledo, Peoria and Warsaw Railway Company, to recover damages for killing plaintiff's stock upon the road. The negligence of the company was alleged to be in failing to fence their track.

Appellants attempted to show contributory negligence on the part of plaintiff, by suffering the stock killed to run at large. The evidence is, that the animals broke out of the owner's pasture, without his fault, consequently, he cannot be chargeable with negligence.

Another point made by appellants is, giving this instruction to the plaintiff: "If you shall, from the evidence, find the

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defendant guilty, you should assess and allow interest at six per cent on what you shall, from the evidence, find to be the value of the property killed and injured, from the date of the killing to this time."

This instruction was wrong, and should not have been given. The case referred to by appellee as sustaining this instruction does not support it. In that case the point was made but was not decided, the cause going off on another point. What was said, therefore, must be regarded as dictum merely. Chicago and N. W. Railway Co. v. Shultz, 55 Ill. 421.

Another point is made, that the damages are excessive. The value of the property, as estimated...

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