The Peoria v. Champ

• Decision Date: 30 September 1874
• Citation: The Peoria v. Champ, 75 Ill. 577, 1874 WL 9297 (Ill. 1874)
• Court: Illinois Supreme Court
• Parties: THE PEORIA, PEKIN & JACKSONVILLE R. R. CO.v.JOHN R. CHAMP.

75 Ill. 577

1874 WL 9297 (Ill.)

THE PEORIA, PEKIN & JACKSONVILLE R. R. CO.

v.JOHN R. CHAMP.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. LYMAN LACEY, Judge, presiding.

This was an action originally commenced by the appellee against the appellant, before a justice of the peace, to recover the value of a horse killed by the appellant. The opinion of the court presents the material facts of the case.

Messrs. JOHNSON & HEWITT, for the appellant.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

At the date plaintiff's horse was killed, it was unlawful for domestic animals to run at large in Peoria county, where the accident occurred. Sess. Laws 1872, p. 116.

Notwithstanding this fact, he turned his horse out upon the commons, adjoining his premises, and from thence it escaped over uninclosed lands of other persons, to the track of the railroad, where it was struck by a train and killed. No fence had been erected on either side of the track, although it was the statutory duty of the company to have erected suitable fences, unless it had been relieved by the agreement of the adjoining proprietors, of which there is no evidence in the record.

On this state of facts, the question arises, whether the company is responsible for the value of the animal killed, if it is shown its servants observed every reasonable precaution to avoid the accident.

It was contrary to the provisions of the statute for plaintiff to turn his horse upon the commons, and, therefore, unlawful. There was nothing to prevent it from getting from thence upon the railroad. Of this fact he was well aware, for it occurred near plaintiff's residence, and he was, of course, familiar with the locality. By the voluntary, unlawful act of the plaintiff, his horse was trespassing on the right of way of the company, and this fact must be imputed to him as negligent care for the safety of his property. Had the horse escaped from his inclosure against his will, and he had used all reasonable diligence to recapture it, the case would have been within the rule in C. & N. W. R. R. Co. v. Harris, 54 Ill. 528. In that case it was unlawful, by a local ordinance, for plaintiff to permit his horses to run at large, but the decision is placed on the distinct ground, the escape from his private inclosure was involuntary on his part, and that he made reasonable efforts to reclaim them soon after their escape, but was...