The Chicago v. Edgar P. Kellam.

• Decision Date: 30 June 1879
• Citation: 1879 WL 8513,92 Ill. 245,34 Am.Rep. 128
• Parties: THE CHICAGO AND ALTON RAILROAD COMPANYv.EDGAR P. KELLAM.
• Court: Illinois Supreme Court

92 Ill. 245

1879 WL 8513 (Ill.)

34 Am.Rep. 128

THE CHICAGO AND ALTON RAILROAD COMPANY

v.EDGAR P. KELLAM.

Supreme Court of Illinois.

June Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Jersey county; the Hon. CYRUS EPLER, Judge, presiding.

Messrs. WARREN & POGUE, for the appellant.

Mr. J. H. YAGER, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This suit was brought by Edgar P. Kellam against the Chicago and Alton Railroad Company, to recover the value of a cow killed on defendant's road. As the cow was killed on a public road crossing, it is not claimed defendant is liable for the loss sustained unless the killing was negligently or wilfully done. There is no pretence it was wilfully done, so the case is narrowed to the single issue whether the servants of defendant in charge were guilty of negligence in the management of the train that did the injury.

It is insisted this case is controlled by the cases in this court, that declare an engine-driver is not bound to stop his train or even slacken the speed when stock is discovered quietly grazing near the track, or to stop his train on every slight apprehension of danger. Peoria, Pekin and Jacksonville Railroad Co. v. Champ, 75 Ill. 577; Chicago, Burlington and Quincy Railroad Co. v. Bradfield, 63 Id. 220. But the facts in the case at bar are so unlike the facts in the cases cited, the principle declared can have no application. In both cases cited the animals killed were seen grazing near the railroad on the commons, and they were not seen approaching the track until it was too late to stop the train in time to avoid the danger. It was very properly held, it could not be anticipated the animals would suddenly come upon the track, and for that reason the law had not imposed the obligation to slacken the speed of the train. In such cases it was thought neither the safety of the citizen nor the protection of property required the adoption of any such regulation.

But that is not the case here. The animal killed was not feeding on any commons. The herd with which it had been pastured escaped from the inclosure without any fault on the part of the owner, so far as this record discloses, and was next seen on the highway. Exactly what number composed the herd was either not known or was not accurately stated, as the witnesses differ materially as to the number. At all events the number was great enough to attract attention. Parties residing in the vicinity of the crossing where the cow was killed, and who saw the killing, all concur in saying the cattle were traveling in a line across the railroad track on the public road, and all the herd had passed over except the cow belonging to plaintiff, as the express train was seen approaching from the north. She was a heavy animal, and moved, it is said, rather slower than the others composing the herd. Whether she stopped west of the crossing after the other cattle had gone over, and was standing still when first discovered by the engine-driver, the evidence is conflicting. There is testimony, and it is the most reasonable account given, that she was following slowly after the others and had not stopped at all. There is not a...