The Aurora Branch R.R. Co. v. Grimes

• Decision Date: 30 June 1852
• Citation: 13 Ill. 585,3 Peck 585,1852 WL 4328
• Parties: THE AURORA BRANCH RAILROAD COMPANYv.JACOB GRIMES.
• Court: Illinois Supreme Court

13 Ill. 585
1852 WL 4328 (Ill.)
3 Peck (IL) 585

THE AURORA BRANCH RAILROAD COMPANY
v.
JACOB GRIMES.

Supreme Court of Illinois.

June Term, 1852.

THIS case was heard at the May term, 1852, of the Kane circuit court, WILSON, judge, presiding. Trial by jury. Verdict and judgment for Grimes for $110 and costs. The railroad company brought the cause to this court by appeal.

The opinion contains a statement of the case.

W. B. PLATO and GLOVER & COOK, for appellants.

THOMAS C. MOORE, for appellee.

CATON, J.

This is an action on the case brought by Grimes against the railroad company, to recover the value of a mare which was killed in a well belonging to the company. It appears that the appellants own a railroad and depot at Batavia.

[13 Ill. 586]

At a point where the main track and the side track for the depot are some distance apart, they have a well, which is situated between the two tracks, which is distant from the west track from six to ten feet. The well was about six feet across, and was covered with oak boards one inch thick and twelve feet long, and mostly with two thicknesses. There was no other inclosure of the well. The place between the tracks where the well was situated was not frequented by teams or the public. The top of the well was even with the surface of the ground, which was nearly level between the two tracks. In December last, a car load of lumber arrived at the depot for Grimes, which was left standing on the west track, where freight was usually discharged. He desired it moved on to the west track, that it might be discharged at his lumber-yard. The agent of the road declined moving it from the usual place of discharging freight, when Grimes, with the consent of the agent, hitched his mare to the car, and moved it to the desired place.

A few days after, another load arrived, and was left in the same place as the former, when Grimes, without consulting the agent, again hitched the mare to the car, and removed it to the west track. When they had got a short distance beyond the well, the mare refused to draw, backed off the track, became entangled in the traces and got down, and in her struggles got into the well and was killed. When the first car was removed, Grimes led the mare, and she worked well. Upon the last occasion, one witness says, he also led her, while another says he was behind and driving her, when she refused to draw and backed off the track, and that he thinks the plaintiff pulled her off by the line. The mare was a spirited, restive animal. Cars are not usually propelled by horses on that road; but one other person had been seen to move cars with steady horses at that place. These are the leading features of the accident, as described by the testimony, and sufficiently in detail to enable us to understand the instruction which was refused, and of which complaint is made. That instruction was: “If the jury believe, from the evidence, that the injury done to the plaintiff's horse was the result of the fault or negligence of the plaintiff, or the fault or negligence of both the plaintiff and...