The Chicago v. Patchin

• Decision Date: 31 December 1854
• Citation: 6 Peck 198,1854 WL 4818,16 Ill. 198,61 Am.Dec. 65
• Parties: THE CHICAGO AND MISSISSIPPI RAILROAD COMPANYv.DANIEL T. PATCHIN.
• Court: Illinois Supreme Court

16 Ill. 198
1854 WL 4818 (Ill.)
61 Am.Dec. 65
6 Peck (IL) 198

THE CHICAGO AND MISSISSIPPI RAILROAD COMPANY
v.
DANIEL T. PATCHIN.

Supreme Court of Illinois.

December Term, 1854.

THE declaration in this case averred that plaintiff on the 18th day of June, 1853, up to the institution of this suit, to wit: on the 1st day of September, 1854, at etc., was possessed and the owner of certain stock, to wit: one hog, June 12th, 1853; one hog, January, 1854; April 17th, 1854, one red cow; May 22nd, 1854, two hogs, and May 27th, 1854, three hogs; then and there being on a certain unenclosed highway, in said county, whereon the track of the said Chicago and Mississippi railroad is laid out, and used, and kept, etc., and that said company was possessed of certain steam carriages, locomotives, etc., running on said road, etc., by the servants of said company, etc., yet so ignorantly, negligently, carelessly, etc., drove and guided the same, and for want of proper care and management, then and there struck, ran upon, mangled, cut and bruised the said seven hogs and one red cow, and killed the same. To this the defendants pleaded not guilty, with leave to give all special matter in evidence.

This cause was heard before WOODSON, Judge, and a jury, at a special term, in December, 1854, of the Macoupin Circuit Court. Verdict and judgment for the plaintiff for $77.50.

The court gave the following instructions to the jury, at the request of the plaintiff:

First. “That if the jury believe from the evidence in the case, that the servants or agents of the defendants, in running their trains of cars, saw, or in the exercise of reasonable care and diligence, might have seen, the stock of the plaintiff, and might, by resorting to the usual expedients of sounding the whistle, and slackening the speed of the trains, have prevented injury to the plaintiff's stock, and that the servants or agents of the defendants, were wanting in such care and diligence, and

[16 Ill. 199]

did not resort to such expedients, and as a consequence, that the stock of the plaintiff has been injured by the train or trains of the defendants while in motion, the jury will find a verdict for the plaintiff to the extent of the injury to his stock.

Second. That there is no law that requires the Chicago and Mississippi railroad company to fence their road, nor is there any law which makes it incumbent on the owners of stock to prevent them from running at large. If stock running at large should be found upon the railroad track, it is the duty of those having charge of the locomotives and trains, to use such care and means as may be in their power, by the proper management of their trains, to prevent accidents, and any such omission on the part of the agents and servants having the management of the trains, is negligence, and any injury resulting therefrom, will render the company liable for such damages as the injured party may sustain. Whenever, however, a plaintiff charges negligence on the part of the agents or servants of the company, he must prove such negligence as charged in the declaration.”

The court gave the following instructions at the instance of the railroad company:

“The presumptions of law are in favor of defendants, and the plaintiff cannot recover in this suit, unless upon proof of negligence in the servants of defendants.”

“That the killing of the stock mentioned, is of itself, no proof of negligence.”

These, with the instructions copied into the opinion as asked for on the part of defendants, which were refused, were all the instructions presented in the case, on either side.

The substance of the evidence is given in...