Great Western R.R. Co. v. Hanks

• Decision Date: 31 January 1865
• Citation: 1865 WL 2734,36 Ill. 281
• Parties: GREAT WESTERN RAILROAD COMPANYv.ISAAC HANKS.
• Court: Illinois Supreme Court

36 Ill. 281

1865 WL 2734 (Ill.)

GREAT WESTERN RAILROAD COMPANY

v.ISAAC HANKS.

Supreme Court of Illinois.

January Term, 1865.

ERROR to Circuit Court of Macon County.

The case is sufficiently stated in the opinion.

Nelson & Roby, for appellant.

Post & Buckingham, for appellee.

LAWRENCE, J.

This was an action for killing a steer, brought by the appellee against the appellant, under the statute to be found on page 953 of Scates' Compilation, requiring railway companies to fence their roads. The appellant demurred to the declaration, the demurrer was overruled, and there was final judgment against the appellant, who abided by the demurrer. The only questions before us relate to the sufficiency of the declaration. It is objected, first, that there is not a sufficient averment that the road had been open for use six months. The declaration, after the ordinary preamble, proceeds as follows: “Nevertheless, more than six months after said railroad was in use, to wit, on the 1st day of May, 1864, the said defendant neglected to erect,” etc. The statute reads, every railroad company, “shall, within six months after the lines of such railroad or any part thereof are opened, erect, and thereafter maintain,” etc. The averment follows the language of the statute, in showing a breach of duty on the part of the road, and is sufficient on general demurrer.

The declaration, after setting forth the duty of the company to fence, and its failure to do so, proceeds as follows: “by means whereof, one steer, the property of the plaintiff, of great value, to wit, of the value of $100, strayed and got on said railroad, without the limits of towns, cities and villages, and not at the road crossings or public highways,” and the pleader then proceeds to show that the defendant caused the death of said steer by running over it with a train of cars. It is objected that the declaration does not show the steer was not killed in one of the places excepted by the statute, but only that it got on the road at a place “without the limits of towns,” etc. It is urged that it is not important where it got on the track, but where it was killed. On the contrary, the place where it got on is the precise thing to be considered. It was to prevent animals from straying upon the track, that the company was required to build the fences. Whether, after once getting upon the track, through the negligence of the company, they wander to a road crossing before being struck by the locomotive, is wholly immaterial.

It is also urged that the declaration is defective because it does not negative the killing in the excepted places enumerated at the end of the first section of the statute, as well as in those named in the enacting clause, and...