Peoria v. Miller
| Decision Date | 31 May 1882 |
| Citation | 11 Bradw. 375,11 Ill.App. 375 |
| Court | United States Appellate Court of Illinois |
| Parties | PEORIA, DECATUR & EVANSVILLE RAILWAY COMPANYv.ROBERT M. MILLER. |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Moultrie county; the Hon. J. W. WILKIN, Judge, presiding. Opinion filed September 6, 1882.
Messrs. STEVENS & LEE and Messrs. EDEN & CLARK, for appellant; that it was unlawful for plaintiff to turn his cow upon the commons, and this fact must be imputed to him as negligence, cited P. P. & J. R. R. Co. v. Champ, 75 Ill. 577; Ewing v. C. & A. R. R. Co. 72 Ill. 25; C. & M. R. R. Co. v. Patchin, 16 Ill. 198; Ill. Cent. R. R. v. Phelps, 29 Ill. 447; Ill. Cent. R. R. Co. v. Goodwin, 30 Ill. 117; St. L. A. & T. H. R. R. Co. v. Todd, 36 Ill. 415; C. B. & Q. R. R. Co. v. Farrell, 3 Bradwell, 60; C. & A. R. R. Co. v. Utley, 38 Ill. 410.
The engineer in charge of the train is required to use due care to prevent the destruction of property only when safety to his passengers will justify it: G. W. R. R. Co. v. Thompson, 17 Ill. 131; St. L. A. & T. H. R. R. Co. v. Manly, 58 Ill. 300; T. P. & W. Ry. Co. v. Bray, 57 Ill. 575.
Messrs. MEEKER & SMYSER, for appellee; that it is the duty of the engineer to stop in time to avoid an accident, if he can do so by the use of ordinary care, cited 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. 58; T. W. & W. R. R. Co. v. McGinnis, 71 Ill. 346; T. W. & W. R. R. Co. v. Bray, 57 Ill. 514; C. & A. R. R. Co. v. Killam, 92 Ill. 245.
The rule is the same though the animal killed was wrongfully on the track: T. P. & W. R. R. Co. v. Bray, 57 Ill. 346; T. P. & W. R. R. Co. v. McGinnis, 71 Ill. 514; Ill. Cent. R. R. Co. v. Wren, 43 Ill. 77.
In running trains through cities and villages, railroad companies are held to a high degree of caution: T. W. &. W. R. R. Co. v. Harrison, 47 Ill. 298; C. &. A. R. R. Co. v. Engle, 84 Ill. 397.
This suit was brought by appellee against appellant before a justice of the peace to recover the value of a cow, killed by a locomotive drawing a train of passenger cars on appellant's road, on the crossing of the road with main street in the town of Sullivan.
Appellee's cow was breachy, and for that reason he tied her head to one of her hind feet with a rope, and in this helpless condition turned her out of his inclosure, within two or three blocks of the crossing where she was killed, to run at large on the streets and uninclosed lands in the town, in violation of an ordinance of said town, which prohibited breachy stock from running at large therein.
The crossing was planked, twelve or fourteen feet wide, while the track used by wagons was six or eight feet wide. One of the planks had become loosened and displaced, leaving a spike the thickness of the plank standing up at one end of the planking.
When the noon train from the north was approaching the crossing, and about one thousand feet distant from it, the engine driver saw the cow about twenty-five feet from the track approaching the crossing as if to cross over. He immediately sounded the alarm whistle (a succession of sharp quick blasts) and continued the same until within from three to five hundred feet of the crossing, when the cow got on the track, and he then discovered that she was hobbled, or tied with a rope, but did not notice that the rope was fast. He immediately applied the air-brakes but the wheels slipped, in consequence of the dampness of the track; then reversed the engine, but saw that he could not stop in time to save the cow, and then put on steam to knock her off, thinking this course necessary to the safety of his passengers.
The cow had got her rope fast on the spike at the end of the loose plank and was held on the track until struck by the locomotive and killed.
It is contended by appellee that the engine driver in charge of the train that killed the cow was guilty of gross negligence in running his train at such a rate of speed as to be unable to stop it in time to avoid the accident.
The train had stopped at the station in the town and after starting, had gone one hundred and ninety rods before reaching the crossing where the cow was killed. Whether it was thickly or sparsely settled at or near the place of the accident does not appear. A rate of speed that would be highly dangerous, or even reckless, in a populous city with numerous...
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