Chicago & Nw. Ry. Co. v. Harris

• Decision Date: 30 September 1870
• Citation: Chicago & Nw. Ry. Co. v. Harris, 54 Ill. 528, 1870 WL 6373 (Ill. 1870)
• Court: Illinois Supreme Court
• Parties: CHICAGO & NORTHWESTERN RAILWAY CO.v.JOHN HARRIS.

54 Ill. 528

1870 WL 6373 (Ill.)

CHICAGO & NORTHWESTERN RAILWAY CO.

v.JOHN HARRIS.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Winnebago county; the Hon. BENJAMIN R. SHELDON, Judge, presiding.

The opinion states the case.

Mr. JAMES M. WIGHT, for the appellants.

Mr. H. W. TAYLOR, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action on the case, brought by appellee in the Winnebago circuit court, against appellants, to recover for injuries to two horses, inflicted by a train on their railroad. It appears that about the twenty-first of November, 1869, appellee let his horses into his yard to water, but not being able to get them back to the pasture, he left them and went to church, it being on Sunday. He left all of the gates of the lot in which the horses were left, closed, but on his return from church, a little after noon, the horses had got out and were gone. It appears the horses entered Hager's land through open bars, and through Delaney's land, and through Amos Harris' land, no fence separating these three tracts, and from his land they passed through an open gate at a farm crossing, and then passed east on the track about eighty rods, where they were struck by appellants' locomotive and train, coming from the west, at a culvert at an embankment. One of the horses was so much injured that he was never removed from the ditch into which he was precipitated, and was finally killed. The other was badly injured, but was removed to appellee's stable, where he remained for about two weeks, when it became necessary to kill him. The horses were proved to be worth from $225 to $250 before they were injured.

The place where the injury occurred, and the gate through which the animals passed to the railroad track, were points at which appellants had fenced their track, and had put in the gate. It seems the gate had been open for some time, and the section foreman had passed frequently while it stood open. The jury found a verdict for appellee. A motion for a new trial was entered, which was overruled and judgment rendered on the verdict, and the case is brought to this court by appeal, and a reversal is asked.

The section foreman testified that he was in the habit of passing that part of the road four times each day, for the purpose of inspecting its condition. And the evidence, we think, clearly establishes the fact, that the gate had stood open about a week before the accident. This, then, establishes negligence on the part of appellants. On that point, we can find no fault with the conclusion of the jury. The evidence fully warranted them in arriving at that conclusion. But it is urged that appellee was also guilty of negligence, and to that degree that he was not entitled to recover. The law requires these companies to fence the track of their roads with sufficient fences to turn stock, and after erecting them, to keep them in repair. The statute also requires them to put in gates at farm crossings. These gates are a part of the fence, and the duty to keep their fences in repair, includes the duty of keeping them safe and securely closed, so as to afford equal protection from stock getting upon their roads at such places as at other points. See Illinois Central R. R. Co. v. Arnold, 47 Ill. 173. And in that case it was held, where an animal entered the close of another, through an insufficient fence upon the highway, and passed thence through a space made for bars, and used as a farm crossing upon the railroad track, and was killed, and it appeared that the bars were left down...