Chicago v. Buck

• Decision Date: 30 November 1883
• Citation: 14 Bradw. 394,14 Ill.App. 394
• Parties: CHICAGO AND ALTON RAILWAY COMPANYv.ABRAHAM BUCK.
• Court: United States Appellate Court of Illinois

14 Ill.App. 394

14 Bradw. 394

CHICAGO AND ALTON RAILWAY COMPANY

v.ABRAHAM BUCK.

Appellate Court of Illinois, Third District.

November Term, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Logan county; the Hon. G. W. HERDMAN, Judge, presiding. Opinion filed February 5, 1884.

Messrs. BLINN & HOBLIT, for appellant; that where stock are killed on a railroad track, if the company has maintained proper fences, the rate of speed at which its trains are moving has nothing to do with the question of responsibility, cited C., B. & Q. R. R. Co. v. Lee, 68 Ill. 576; White v. N. & B. R. Ry. Co., 15 Hun, 333; Such v. C. & C. R. R. Co., 2 West. L. M. 486; C. & A. Ry. v. Robinson, 9 Bradwell, 91.

Messrs. BEACH & HODNETT, for appellee; that the gates and bars at farm crossings are part of the fence that railroad companies are bound to keep up under the statute, cited Great West. R. R. Co. v. Helm, 27 Ill. 199; I. C. R. R. Co. v. Arnold, 47 Ill. 173; C. & N. W. Ry. Co. v. Harris, 54 Ill. 528.

A railroad company is liable for killing stock if killing could be avoided by the exercise of ordinary care and diligence: Shuman v. I. & St. L. R. R. Co., 11 Bradwell, 472; R. R., I. & St. L. R. R. Co. v. Lewis, 58 Ill. 49; R. R., I. & St. L. R. R. Co. v. Irish, 72 Ill. 404; R. R., I. & St. L. R. R. Co. v. Rafferty, 73 Ill. 59.

Unless manifestly against the weight of the evidence, the verdict will not be disturbed: Crain v. Wright, 46 Ill. 107; Wolbrecht v. Baumgarten, 26 Ill. 291; Chittenden v. Evans, 48 Ill. 52; Calvert v. Carpenter, 96 Ill. 63.

HIGBEE, J.

This was a suit brought in the Logan Circuit Court by Abraham Buck against the appellant railroad company, to recover damages for the loss of several horses, alleged by him to have been killed by the carelessness of the servants of the company in operating its trains of cars on its road. The trial was before a jury, resulting in a verdict and judgment against appellant, from which an appeal is prosecuted to this court, and a reversal asked, mainly upon the ground that the verdict was against the evidence in the case.

Mr. Buck was the owner of a farm, through which the track of appellant's road lay. On one side of the road was a pasture separated from the right of way by a fence belonging to the railroad company, and near to his house was a gate, leading out of the pasture to a farm crossing, constructed for the use of the farm. About eight o'clock on Saturday night, October 21, 1882, appellee had, running in his pasture, twenty-two head of horses; between that time and six o'clock the next morning, the horses had escaped through the gate onto the railroad track, and four of them were so badly injured that they had to be killed.

The first ground upon which it is claimed that appellant is liable for the injury to the stock is, that the fastenings on the gate were not sufficient to prevent the horses from opening the same and going onto the track. There was no complaint of the sufficiency of the fences, and appellee himself testified that the same gate through which the horses passed, had stood at that farm crossing since 1866. The only defect complained of, was the manner of fastening the gate. This was done with an iron hook, attached to the gate at one end, and the other hooked into an iron staple driven into a large oak post. Appellee says, “there were two staples on the post with a latch on the gate to hook into them, one lower down than the other; when hooked in the upper one, it drew the gate nearly up against the post.”

He says “it had a little over an inch play, perhaps an eighth of an inch over; and I think stock could get the gate open by rubbing against it and getting the hook out; I mean by rubbing and striking against the hook. A horse could lift it out by getting hold of it with his teeth.” By other evidence it appears, that in order to fasten the hook into the staple it was necessary to raise it up, and it could only be unfastened by lifting the gate up to get the hook out of the staple in the post. It seems that appellee and his family were in the constant habit of passing through this gate. He passed through it the evening before the accident, and his hired man, Mr. Former, went through, between seven and eight o'clock, and fastened the hook, and the gate was closed the next morning. It does not appear just how long these fastenings had been used, but evidently for several years before the horses were injured, with the slight change that this hook was set just above another that had been formerly used. And even after the horses were killed, the same fastenings seem to have been used for more than six months, without any change or complaint by appellee.

A short time before the horses were killed, the fence repairer of the road was engaged in repairing the fence, and called on Mr. Buck to point out any repairs needed on the line of this fence, which he did, and the repairs were made; but he did not speak of the gate or the fastening as needing any repairs. From all this evidence, we are satisfied that both the employes of the road, whose duty it was to keep the fences in repair, and Mr. Buck, regarded the fastenings to the gate sufficient, under ordinary circumstances, to turn stock. Had Mr. Buck regarded them as unsafe and his stock in danger, it is strange that no complaint was heard from him, and still more so, that he did not mention the fact to the fence repairer when called upon for that purpose.

It is not shown whether the gate was opened in the night by the horses or by some person who had passed through. In the whole sixteen years it had been there, it had never been opened by stock, so far as the evidence shows.

The company was not required to fasten the gate so that it was impossible for stock to open it under any and all circumstances. It had a right to use the fastenings commonly adopted in the country by persons reasonably prudent and careful, and regarded by them as safe, for the purpose. It is not likely that many gates could be found in city or country, fastened with latch or hook, that it would be impossible to open by the nose or teeth of a horse if dexterously applied for that purpose. To hold that the company must provide against such contingencies, would be to adopt a standard of diligence...