St. Louis v. Washburn
| Decision Date | 31 January 1879 |
| Parties | ST. LOUIS, VANDALIA AND TERRE HAUTE RAILROAD CO.v.JOSEPH B. WASHBURN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Clark county; the Hon. OLIVER L. DAVIS, Judge, presiding.
Messrs. DULANEY & GOLDEN, and Messrs. WILKIN & WILKIN, for the appellant:
It is undisputed that the appellant had a contract with appellee's lessor, Miller, to erect and maintain the fence in question for the period of ten years, and that such contract was in full force and operation at the time of the alleged injury and loss. Appellee admits knowledge of such undertaking by Miller, by saying that he repaired the fence himself.
We insist that, under the law, such contract absolved appellant from liability for injury to stock of Miller, or his tenants, caused by the insufficiency of a fence which it was their duty to maintain.
Such a contract has been held a sufficient defence against tenants in other States. I., P. and C. R. R. Co. v. Petty, 25 Ind. 414; C., H. and D. R. R. Co. v. Waterson, 4 Ohio St. 434; Tombs v. Rochester, etc. R. R. Co. 18 Barb. 583.
To hold that a tenant is entitled to recover under this statute, notwithstanding the contract of his landlord and his own knowledge of his landlord's undertaking, would go far to invalidate the time honored maxim, “a person can not take advantage of his own wrong.”
Messrs. WHITEHEAD & JONES, for the appellee, contended, that while the statute in force at the time of the erection of the fence in question, permitted the company to stipulate with the owner of the land, so as to avoid liability for killing the stock of the land proprietor or his lessees, yet such an agreement had no application under the statute in force at the time the injury was done.
The judgment in this case must be reversed. Appellee was the tenant of Miller, and as such was in possession of a farm adjoining the railroad of appellant. Miller, in 1873, contracted with the railroad company to construct a good and sufficient fence along the line between his land and the strip of land on which the track lay, and to maintain the same for ten years. He built a fence, apparently good and sufficient. In the latter part of 1874, Miller let his farm to appellee. In the spring of 1875, appellee (as was his duty as a tenant, having knowledge of his landlord's undertaking,) repaired this fence. In August, 1875, appellee, with full...
To continue reading
Request your trial