The Ill. Cent. R.R. Co. v. Allen

• Citation: 39 Ill. 205,1866 WL 4382
• Parties: THE ILLINOIS CENTRAL RAILROAD COMPANYv.WILSON ALLEN.
• Decision Date: 31 January 1866
• Court: Supreme Court of Illinois

39 Ill. 205

1866 WL 4382 (Ill.)

THE ILLINOIS CENTRAL RAILROAD COMPANY

v.WILSON ALLEN.

Supreme Court of Illinois.

January Term, 1866.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Macon county; the Hon. CHARLES EMERSON, Judge, presiding.

This was an action on the case brought in the Circuit Court of De Witt county in August, 1859. After the pleas were filed the venue was changed to Macon county. The facts sufficiently appear in the opinion.

Messrs. MOORE & GREENE, for the appellant.

1. A party cannot recover for an injury to which he himself materially contributes. Hilliard on Torts, 186, § 28; Aurora B. R. R. v. Grimes, 13 Ill. 585.

2. The appellee had formerly recovered for the same cause of action, and the judgment was paid.

3. The company had obtained the right of way from the former owner, and is not responsible to his grantee in any event. Redfield on Railways, 105, 154.

4. And having the right of way the company is not in this case responsible to any body, for the proof shows that reasonable care was used in building the embankment, and whatever sediment flowed on the land was the natural result of building the road. Redfield on Railways, 105, 152. Mr. L. WELDON, for the appellee.

1. The proof shows that the company, in the lawful business of repairing its road, performed it so neglectfully that the owner of the land was damaged.

2. The “contract of record” cannot help appellant's case. Even if proper to be considered it did not authorize the company to be careless in repairing its road. That contract was not made with reference to the land on which the pond was located, and has no application to this case.

3. The company was requested to make a ditch that would run the water into the pond and keep it full, not one that would bring all the sediment of the road into the pond.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action on the case brought by Allen against the railroad company. The first count in the declaration averred that the defendants obstructed an ancient drain, and thereby caused a pond to form, which became offensive and stagnant, by means whereof the family of plaintiff became sick, and he was deprived of the enjoyment of the land, etc. This count alleges the said drain and pond to be on the north-west of the south-west of section fourteen, township nineteen north, range two east. The second and third counts aver that a different tract of land, to wit, the south-west of the north-west of the same section had been injured by the washing of mud and sediment in consequence of the improper construction of the railroad. The defendant pleaded not guilty, with notice that on the trial it would prove a former recovery, accord and satisfaction and license. There was a trial by a jury, and a verdict for the plaintiff below for twenty-five dollars. The defendant moved for a new trial, which motion was overruled, and the defendant appealed.

This suit was commenced August 19th, 1859, in the De Witt Circuit Court. A record put in evidence by the defendant shows that at the May Term, 1854, of the same court, the plaintiff brought an action of trespass against the defendant for injuries to the south-west of the north-west of section fourteen aforesaid, and three acres off of the north end of the north-west of the south-west of said section fourteen, resulting from the construction of the road. The record further showed that “the parties by agreement submitted to the jury to find the full amount of past, present and future damages from matters charged in the...