Chicago v. Bock
| Decision Date | 31 May 1885 |
| Citation | 17 Bradw. 17,17 Ill.App. 17 |
| Parties | CHICAGO AND ALTON RAILROAD CO.v.ABRAHAM BOCK. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Logan county; the Hon. G. W. HERDMAN, Judge, presiding. Opinion filed August 20, 1885.
Messrs. BLINN & HOBLIT, for appellant; that evidence of experiments made by witnesses two years after the accident at a different place, as to the distance an object could be seen at five o'clock in the morning, was incompetent, cited Yates v. People, 32 New York, 509; Aldrich v. Pelham, 1 Gray, 511; Collins v. Dorchester, 6 Cushing, 396.
The distance an object could have been seen in front of an engine at the time of the accident was an important element in determining whether the company was guilty of negligence, and incompetent evidence having been admitted to a point material to the issue, the verdict should be set aside: Aldrich v. Pelham, 1 Gray, 511; C. & M. Ry. Co. v. Moranda, 108 Ill. 576; McCoy v. People, 71 Ill. 111; Richardson v. Kelly, 85 Ill. 491; Robertson v. Brost, 83 Ill. 116.
Messrs BEACH & HODNETT, for appellee; as to negligence. cited T. P. & W. R. W. Co. v. Ingraham, 58 Ill. 120; R. R. I. & St. L. R. R. Co. v. Irish, 72 Ill. 404.
The appellee is the owner of a pasture adjacent to the railroad track of appellant. In the pasture were a number of horses, which, escaping during the night time, went upon the track, and some of them were so injured by a train or trains passing over the road as to render them worthless.
To recover for damages thus sustained this suit was brought. A trial by jury resulted in a verdict for plaintiff, and a motion for new trial being denied, judgment was rendered accordingly. The record is brought here by appeal. We are asked to reverse the judgment upon the ground, as alleged, that the evidence does not support the verdict. It was stipulated at the trial that the animals got upon the track without the fault of plaintiff or defendant, and it follows that the only question is as to the alleged negligence of the defendant by its servants in the management of its trains. There is no dispute as to the law in this respect, and it may be briefly stated thus: That it was the duty of defendant to exercise ordinary care and vigilance, in running its trains, to avoid injuring animals so being on the track, and that if it failed to exercise such care and vigilance, and by reason of such neglect and without fault of plaintiff the injury occurred, then defendant is liable, and it devolves upon the plaintiff to establish such negligence by a preponderance of evidence. There is no direct testimony as to when or how the animals were injured, but we are quite well satisfied, from the circumstances in proof, that they were struck by a train going north, at or about five o'clock in the morning of October 22, 1882. At least there is evidence from which this conclusion may be drawn. The evidence from which appellee would deduce the charge of negligence consists mainly of the tracks and marks made by the horses as they were running, and as they were dragged along and finally pitched from the road bed. Assuming that the injury was inflicted by a train going in the direction and at the hour just stated, from the distance the horses ran, apparently at great speed and in much confusion, it is argued that the persons in charge of the engine had ample opportunity for seeing them and avoiding the injury. On the other hand the employes of the defendant running trains that night all testify...
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