The Ill. Cent. R.R. Co. v. Mckee

• Decision Date: 31 January 1867
• Citation: The Ill. Cent. R.R. Co. v. Mckee, 43 Ill. 119, 1867 WL 4993 (Ill. 1867)
• Parties: THE ILLINOIS CENTRAL RAILROAD COMPANYv.THOMAS MCKEE.
• Court: Illinois Supreme Court

43 Ill. 119

1867 WL 4993 (Ill.)

THE ILLINOIS CENTRAL RAILROAD COMPANY

v.THOMAS MCKEE.

Supreme Court of Illinois.

January Term, 1867.

APPEAL from the Circuit Court of Coles county; the Hon. A. L. DAVIS, Judge, presiding.

The opinion states the case.

Mr. O. B. FICKLIN and Mr. A. J. GALLAGHER, for the appellant.

Messrs. HENRY, READ & STEELE, for the appellee. Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action on the case in the Coles Circuit Court, brought by Thomas McKee against The Illinois Central Railroad Company, for killing a horse, the property of the plaintiff, by the defendant's locomotive, the horse having got upon the track by means of a gate at a farm crossing being negligently left open, as alleged.

The court gave to the jury this instruction for the plaintiff:

“If the jury believe, from the evidence, that the horse of the plaintiff got upon the defendant's railroad at a gate erected at a farm crossing by the defendant, and that while so on said road was killed by the locomotive and train of the defendant, and such gate through which said horse entered, at the time and for a long time previously thereto was left open continuously, or so large a portion of the time that the employees of the road whose duty it was to keep up and maintain the fence must have known the fact, that at the time the gate was not left open without the fault or negligence of the defendant, and that the place where said horse got upon said road was not within the limits of any city, town or village, nor at the crossing of any public highway, and was within five miles of a settlement and at a place where the proprietors of adjoining lands to the defendant's right of way had not fenced nor agreed to fence, and that said road had been open and the defendant had run upon it locomotives and trains more than six months previous to the killing of said horse, then the jury will find for the plaintiff and assess his damages at the value of said horse.”

The defendant asked these instructions, which were refused:

“When the railroad makes and maintains a gate at a farm crossing for the accommodation of the owner of a farm, the duty devolves on the owner or proprietor of the farm, and not on the railroad company, to keep the gate closed, and if the death of the horse in controversy was occasioned by the negligence of such proprietor, the company is not liable.

As there is no allegation in the declaration that defendant had failed or neglected to keep the gates closed at the farm crossing, near where the horse was killed, all evidence touching that question is excluded from the jury.”

The only questions made here arise out of these instructions, and involve the point, whose duty is it to see that gates so placed at farm crossings are kept closed, and upon the admission of certain testimony.

There was no count in the...