The Chicago v. John W. Taylor.
Decision Date | 31 December 1880 |
Citation | 8 Bradw. 108,8 Ill.App. 108 |
Parties | THE CHICAGO AND NORTHWESTERN RAILROAD COMPANYv.JOHN W. TAYLOR. |
Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Whiteside county; the Hon. JOHN V. EUSTACE, Judge, presiding. Opinion filed April 6, 1881.
Messrs. W. & W. D. BARGE, for appellant; that under the law it is necessary that the engines and cars should have come in actual contact with the horse, cited Hurd's Revised Statutes 1880, page 822; Lafferty v. Hannibal & St. Joseph R. R. Co. 44 Mo. 291; O. & M. R. R. Co. v. Cole, 41 Ind. 331; P. & I. R. R. Co. v. Hasket, 10 Ind. 409; B. P. & C. R. R. Co. v. Thomas, 60 Ind. 108; J. M. & I. R. R. Co. et al. v. Downey, 61 Ind. 287; 1 Redfield on Railways, 493; Wharton on Negligence, 757, Sec. 828; Hilliard on Torts, 385.
The owner of a horse loaned to another is responsible for the negligence of the borrower; and if the negligence of the latter contributed to an accident whereby the horse was killed, the owner cannot recover: 2 Thompson on Negligence, 1242, Sec. 17; Forks Township v. King, 84 Pa. St. 230; Cooley on Torts, 144, 145.
The servants of appellant in charge of the train were only required to use reasonable care and diligence to prevent the horse from going on the bridge and to remove him from it: P. P. & J. R. R. Co. v. Champ, 75 Ill. 577; T. P. & W. R. R. Co. v. Bray, 57 Ill. 514.
An instruction should assume nothing: Olsen v. Upshal, 69 Ill. 273; Durham v. Goodwin, 54 Ill. 469; C. B. & Q. R. R. Co. v. Payne, 49 Ill. 499; C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510.
As to the sufficiency of the care and caution used in removing the horse from the bridge: Needham v. San Francisco and San Jose R. R. Co. 37 Cal. 409; Ill. C. R. R. Co. v. Reedy, 17 Ill. 580.
It is error to give an instruction founded upon a state of facts when there is no evidence tending to prove them: Andreas v. Ketcham, 77 Ill. 377; American v. Rimpert, 75 Ill. 228; I. C. R. R. Co. v. Cragin, 71 Ill. 177; I. C. R. R. Co. v. Benton, 69 Ill. 174; Holden v. Hulburd, 61 Ill. 280; Paulin v. Howser, 63 Ill. 312; Ind. & St. L. Co. v. Miller, 71 Ill. 463.
Messrs. DINSMOOR, STAGER & DINSMOOR, for appellee; that appellee was not responsible for the negligence of Stitzell in leaving the fence down, cited McCoy v. California Pa. R. R. Co. 40 Cal. 532; Wilder v. Maine R. R. Co. 65 Me. 332; Brown v. Providence H. & F. R. R. Co. 12 Gray, 55; Corwin v. New York & E. R. R. Co. 3 Kernan, 42; Sarrod v. N. W. R. R. Co. 4 Exch. 587.
That the case of Ill. C. R. R. R. Co. v. Reedy, 17 Ill. 580, has been overruled in Ill. C. R. R. R. Co. v. Middlesworth, 43 Ill. 64.
That the horse of appellee was not running at large and the instruction to that effect was not supported by the evidence: Town of Collinsville v. Scanland, 58 Ill. 221; Kinder v. Gillespie, 63 Ill. 88.
Appellee was the owner of a horse and had loaned him to one John Stitzell, a neighbor for whom he was at work, on the latter's farm. John Stitzell's farm was just west of Nelson Station in Whiteside county, joining on the west of it; his house and all his farm buildings were north of the railroad track, which ran east and west; he had no land on the south side of the railroad. The horse was put into the stable on the night of the 23rd Oct. 1879, and during that night broke out and through a gap in the railroad fence south of Stitzell's house and a little east of his barn, where a gap had been left open by Stitzell, or his hands, several weeks before that time, so that horses could be lead through; had gone on to the railroad track twenty or thirty rods west of Nelson station and about one mile east of Rock river bridge.
About 12 o'clock at night, as the freight train consisting of twenty-eight to thirty cars came along on appellant's road just at this point, the horse ran upon the embankment from the south side of the track just in front of the cars and ran rapidly in the dark along on the railroad track till he was out of sight.
The engineer saw the horse come onto the track, when he whistled down brakes and slacked up the train which was running when the horse first came on to the track at the rate of about eight or nine miles per hour.
Brakes were set and the train put under control, and the speed slackened, and the engineer and fireman kept watching for the horse and when they had gotten about half way to the bridge they saw the horse come running back on the track, headed for the engine but when he came within twenty or thirty feet of the engine he wheeled and ran back again on the track towards the bridge and out of sight. The engineer then slowed up the train to a speed of three or four miles an hour, so he could have gotten off and walked as fast as the train ran.
The engineer and fireman could only see two hundred or two hundred and fifty feet ahead of the head light.
While running along cautiously in this way, supposing the horse had got off the track, when they came within about two hundred feet of the bridge they saw the horse at the east end in the act of running on to it.
They then immediately stopped the train within about one hundred and fifty feet of the bridge, but the horse being frightened, jumped on and ran thirty to forty feet when all his legs fell through between the ties and he was imprisoned. The bridge was made of cross ties about eight feet long and six inches wide laid eight inches apart, and was some fifteen feet high. The railroad hands, about eight in number, then got the horse's legs from between the ties, tied them all together with halter straps and hemp cord, and hitching the engine to the ropes, pulled the horse cautiously and slowly back off the railroad bridge on to the solid bank where the horse was unloosed, got up and ran down the railroad bank off the track and disappeared. By this fall through the bridge, and may be the getting the horse off the track, he received such injuries that he afterwards died, and appellee recovered judgment against appellant for forty dollars and costs of suit in the court below.
In taking the horse off the bridge it is conceded by counsel for appellee that the railroad hands acted prudently and cautiously and used as much care as they could under the circumstances.
It will be seen by this statement that the horse received no injuries from direct contact with the engine or cars.
It is claimed on the part of the appellant:
1st. That appellee is chargeable with the negligence of Stitzell, who had the horse in his care and under his control, in taking down the railroad fence and permitting it to remain down, whereby the horse got through on the track and was injured.
2nd. That as appellee received no direct injury by reason of the cars or engine running against the horse, this fact, if it be admittted, that the appellant did not keep the railroad fence in repair as it is required to do by the statute, would not make the appellant liable under the statute.
3rd. That the appellant is only liable for the injury sustained by the horse resulting from want of ordinary care or gross negligence as at common law.
4th. That under the facts as developed in the evidence, that appellant is not chargeable with want of ordinary care in running its train.
According to the view we take of the case, it is not necessary to decide whether or not appellee is chargeable with the negligence of Stitzell in causing the railroad fence to be taken down and in not putting it up again: that is, whether appellee is chargeable with the wrongful act of Stitzell in taking down the fence long before he took the horse into his care, or whether he is chargeable with the wrongful omissions in allowing it to...
To continue reading
Request your trial