The Joliet v. Jones

• Decision Date: 30 April 1858
• Citation: 10 Peck 221,1858 WL 6061,20 Ill. 221
• Parties: THE JOLIET AND NORTHERN INDIANA RAILROAD COMPANY, Appellant,v.ROBERT JONES, Appellee.
• Court: Illinois Supreme Court

20 Ill. 221
1858 WL 6061 (Ill.)
10 Peck (IL) 221

THE JOLIET AND NORTHERN INDIANA RAILROAD COMPANY, Appellant,
v.
ROBERT JONES, Appellee.

Supreme Court of Illinois.

April Term, 1858.

Appeal from Will.

1. If the bill of exceptions includes the pleadings of the parties, the costs of so much of the record as contains these pleadings in the bill should be taxed against the party who caused their insertion.

2. If the deed has been given to one corporation, and assigned by it to another, or if the name of the corporation has been changed, proof of such averments must be made where the plea of the general issue has been interposed.

[20 Ill. 222]

3. In a suit against a railroad company for injuries to sheep, arising from neglect to build a fence, as it had contracted to do, the question is not whether the fence would have made a perfect inclosure as against the road, but whether the neglect contributed to the injury.

4. Where the negligence charged is not in the running of the train, but in not building a fence, if it does not appear that the sheep got upon the track because this fence was not built, other parts of the field not being inclosed, the plaintiff will not be relieved from the exercise of proper care, and he cannot recover if his negligence was the direct and proximate cause of the injury.

THIS was a suit in case brought by appellee against appellant, in Will circuit court, and tried at the May term, A. D. 1857. Verdict for plaintiff, $231.50.

The declaration contains but one count. It first recites that defendant, “under and by the corporate name of the Oswego and Indiana Plankroad Company,” on October 13, 1853, being about to construct a railroad from Joliet to State Line, applied to plaintiff for right of way across his land, being E. half N. E. qr., section 14, township 35 N., range 10 E., in Will county; that plaintiff, in consideration, among other things, that defendant, before their railroad went into operation, would make a fence along south side of the road, conveyed to them, “then a corporation, under the name of Oswego and Indiana Plankroad Company,” by deed, a certain tract, describing it, situated in the northeast corner of the said tract, and that defendant accepted the deed upon that condition, and with express promise to build such fence. It then avers that, on 24th day of June, 1855, after the road was built across the land, and in operation, and while plaintiff still owned and possessed the land adjacent on the south, defendant neglected to build the fence; and that certain sheep, then feeding in plaintiff's close, escaped, got on to the railroad, and “were run over by the locomotives and cars, then and there passing and repassing on said railroad,” alleging the killing of some, the injury of others, and costs of necessary care and attendance to the injured. Damages laid at $500.

Plea, general issue and similiter.

Plaintiff offered, ??in evidence, the record of a deed from himself to the Oswego and Indiana Plankroad Company, dated October 13, 1853, being the same referred to in the declaration, and conveying the premises. Contained the following words in the habendum clause: “Subject to the following covenants of the said party of the second part, to wit: they are to erect and forever maintain a good and sufficient...