The Ohio v. Shanefelt

Decision Date30 June 1868
Citation47 Ill. 497,95 Am.Dec. 504,1868 WL 5029
CourtIllinois Supreme Court


APPEAL from the Circuit Court of Marion county; the Hon. SILAS L. BRYAN, Judge, presiding.

The facts of this case are fully stated in the opinion of the court.

Mr. H. P. BUXTON for the appellants.

Messrs. WILLARD & GOODNOW for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of trespass on the case, brought by appellee, in the Marion Circuit Court, against the appellants. The declaration avers that appellee was the owner of one thousand rails, and twenty acres of meadow, situated on his farm, of the value of two hundred dollars; that appellants owned, and operated, a railroad running through the farm; that appellants owned the right of way fifty feet in width on each side of their track; that it was the duty of appellants to keep the right of way free and clear from dry grass, weeds, &c., to prevent fire from communicating from their engines, to such dry grass, and thence to the meadow; but that appellants negligently suffered their right of way, adjoining appellee's fence and meadow, to become foul with dry grass, and a locomotive of appellants whilst in charge of their servants, was run over their track, and fire was communicated therefrom, to the dry grass on their right of way, and from the same to the fence and meadow of appellee, and burned one thousand rails and twenty acres of meadow, appellee's property, and destroyed the same. To this declaration appellants filed a plea of not guilty.

It appeared from the evidence, on the trial, that appellants owned the road running through appellee's farm, and that there was dry grass and weeds on their right of way, and that fire was communicated from a passing engine, operated by the company, on the 28th of August, 1866, to the grass on their right of way, and ran thence into the fence and meadow of appellee; that eight hundred rails were destroyed, and sixteen acres of meadow burnt over; that there was dry grass in the meadow adjoining to the right of way. Appellants introduced evidence from which it appeared that the engine, from which the fire was communicated, was furnished and properly equipped with the most approved mechanical contrivances known, to prevent the escape of fire, which was in good repair.

The case was submitted to the jury without instructions from the court, and they found a verdict in favor of appellee, for $98.40 damages. Appellants entered a motion for a new trial, which was overruled by the court, and a judgment rendered on the verdict; to reverse which, the case is brought, by appeal, to this court, and the overruling of the motion for a new trial is assigned for error.

This record presents the question, whether a railroad company, having provided and used the best known contrivances to prevent the escape of fire from their engines, are, nevertheless, liable for not removing, or preventing the accumulation of, dry grass and weeds on their right of way, to prevent fire from communicating to adjoining lands. In other words, are such bodies bound to cultivate, mow, or otherwise prevent the growth of vegetation on their right of way? Is it per se negligence to permit dry grass and other vegetable matter, combustible in its nature, to remain on the side of their track? That such bodies, like individuals, are required, by the law, to use all reasonable precautions to prevent injuries to others, there can be no question. All persons are required to so use their own as to prevent injury to others, and this rule applies, to the same extent, and no farther, to corporate bodies as it does to natural persons. It then follows, that appellants were bound to use the same degree of effort to prevent injury to others, whilst exercising their franchises and corporate privileges, as an individual is under to other persons.

Again, it is the settled law of this court, that negligence is relative, and if both plaintiff and defendant are negligent, a recovery can not be had, unless the defendant has been guilty of gross negligence, amounting to willful misconduct. If a plaintiff is guilty of such negligence as necessarily contributes to the injury, it must appear that the defendant was guilty of a higher degree of negligence. When the plaintiff, by his own carelessness, has contributed to produce the injury, the defendant is not absolved from all further care and effort, on his part, to avoid the injury, but is still required to use all reasonable efforts to prevent its recurrence, and failing to do so, he must be held liable. But, in the very nature of things, it must be, that where the plaintiff has, by his negligence increased the hazard, it becomes more difficult for the defendant to avoid the injury, and, unless it appears that he could have done so, he will not be held liable.

In the case of The Illinois Central R. R. v. Mills, 42 Ill. 407, it was said, that it was not an indispensable conclusion of law, that a railway company is guilty of negligence, to be inferred from the fact that fire ignited in dry weeds or grass upon their land; but that it is a question of fact to be determined by the jury, in view of the extent to which the weeds and grass have been permitted to accumulate on their right of way, the season of the year, and all other circumstances affecting the liability to fire. It was also held, that the company were bound to use the same diligence in removing such weeds, grass and other combustible material, from exposure to ignition by the locomotive, that a cautious and prudent man would use in reference to combustible matter upon his own premises, if...

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21 cases
  • Union Pacific Railway Co. v. Gilland
    • United States
    • Wyoming Supreme Court
    • December 1, 1893
    ...Pac. R. R. v. Butts, 7 Kan. 308; White v. Mo. Pac. R. R. Co., 31 Kan. 280; Ill. Cent. R. R. Co. v. Mills, 42 Ill. 407; Ohio & Miss. R. R. Co. v. Shanefelt, 47 Ill. 497; Tex. & Pac. Ry. Co. v. Medaris, 64 Tex. Perry v. So. Pac. R. R. Co., 50 Cal. 578; B. & M. R. R. Co. v. Westover, 4 Neb. 26......
  • Jacksonville, T. & K.w. Ry. Co. v. Peninsular Land, Transp. & Mfg. Co.
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    ...of the law. There is nothing in the authorities cited by appellant--Pierce, R. R. 434; Coates v. Railway Co., 61 Mo. 38; Railroad Co. v. Shanefelt, 47 Ill. 497; Railway Co. v. Simonson, 54 Ill. Murphy v. Railway Co., 45 Wis. 222; Kesee v. Railroad Co., 30 Iowa, 78; Railway Co. v. Brady, 17 ......
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    • United States Appellate Court of Illinois
    • February 28, 1882
    ...diligence to protect them from fire: G. W. R. R. Co. v. Haworth, 39 Ill. 346; Ill. Cent. R. R. Co. v. Mills, 42 Ill. 407; O. & M. R. R. Co. v. Shanefelt, 47 Ill. 497; T. P. & W. R'y Co. v. Pindar, 53 Ill. 447; Ward v. M. & St. P. R. R. Co. 29 Wis. 144; T. W. & W. R. R. Co. v. Larmon, 67 Ill......
  • Chicago, Kansas & Western Railroad Co. v. Leila
    • United States
    • Kansas Supreme Court
    • October 6, 1894
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