Ill. Cent. R.R. Co. v. Elijah Swearingen.

• Decision Date: 31 January 1868
• Citation: 1868 WL 4962,47 Ill. 206
• Parties: ILLINOIS CENTRAL RAILROAD COMPANYv.ELIJAH SWEARINGEN.
• Court: Illinois Supreme Court

47 Ill. 206

1868 WL 4962 (Ill.)

ILLINOIS CENTRAL RAILROAD COMPANY

v.ELIJAH SWEARINGEN.

Supreme Court of Illinois.

January Term, 1868.

APPEAL from the Circuit Court of DeWitt county; the Hon. JOHN M. SCOTT, Judge, presiding.

This was an action on the case brought by Swearingen, against the company to recover the value of three horses of the plaintiff, killed by a train on defendant's road, which passed through plaintiff's land. The fence was seen Saturday afternoon by a section master, and he testifies it was then up. That night, one horse got upon the track and was killed. Sunday night, two other horses got upon the track and were killed. It appears that the place where the stock got on the track was at a place used by the neighbors as a place of crossing the fence to cut across the field; that the fence was five feet high when a pole was on the tops of the posts; that at this crossing, the pole was frequently off; there was no positive evidence that this pole was knocked off at the crossing before the horses broke through, except that, with the pole on, the fence had, heretofore, kept in these same horses.

For the plaintiff, the court gave the following instructions:

1. In determining the question as to whether the fence was sufficient to turn hogs, horses, sheep and cattle, the jury have a right to take the testimony of farmers who are acquainted with fences.

2. If the jury believe from the evidence, that the defendant did build, or cause to be built, a suitable and sufficient fence along their road through the plaintiff's land, then it was the duty of the company to keep up the fence so that it was at all times good and sufficient.

3. It is the duty of the defendant to maintain a fence along the railroad, good and sufficient to turn cattle, sheep, horses and hogs, unless by a contract with Swearingen, he, Swearingen, agreed, as proprietor of the land adjoining, to maintain such fence.

4. If the jury believe from the evidence, that the defendant did not build a fence and maintain along the line of the railroad, through the land of the plaintiff, suitable and sufficient to prevent cattle, horses, sheep and hogs from getting on the track of the railroad, and if they further believe from the evidence, that the plaintiff's horses got on the track by means of the insufficiency of the fence, and were killed by defendant's train on the track, then the jury should find for the plaintiff so much as they believe from the evidence, the horses so killed were worth.

To all of which, the defendant then and there excepted. The court then gave the following instructions for defendant:

1. The court instructs the jury for defendant, that if they believe from the evidence, that there was a good and sufficient fence built by the railroad through this plaintiff's farm or pasture, where the plaintiff kept his horses, and was kept in repair by the defendant, then they will find for the defendant.

2. That if the jury believe from the evidence, that the defendant built and kept in repair a good and sufficient fence at the place in Swearingen's pasture where the horses got on to the track, then they will find for the defendant.

3. That if the jury believe from the evidence, that defendant had a good and sufficient fence on Saturday, Sept. 11, 1860, and that it was broken down by trespassers, or burned down, or blown down, without fault of defendant, and that Swearingen's horses got through this fence before the defendant had reasonable time to repair the fence, then they will find for the defendant.

4. If the jury believe from the evidence, that the railroad had a good fence on the Saturday at 11 o'clock, and before the horses were killed, and that it was a good and sufficient fence on Monday morning next afterwards, and that the defendant's agent, whose duty it was, saw this fence at both of said times above specified, that is evidence tending to show that defendant used due diligence.

5. That if the jury believe from the evidence, that Swearingen, when he built the fence, agreed that if defendant would let plaintiff build this fence tight, so as to keep in hogs, and that if plaintiff wanted to turn in horses or large stock, he would put on an additional board or pole to keep them in, and he failed to do so, and by reason of such failure, the plaintiff's horses got on the defendant's railroad and were killed, then the...