The Toledo v. Barlow
| Decision Date | 31 January 1874 |
| Citation | 1874 WL 8742,71 Ill. 640 |
| Parties | THE TOLEDO, WABASH AND WESTERN RAILWAY CO.v.WILLIAM H. BARLOW. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Adams county; the Hon. JOSEPH SIBLEY, Judge, presiding.
Messrs. SKINNER & MARSH, for the appellant.
Messrs. MOORE & THOMPSON, for the appellee.
This was an action against the railroad company, to recover the value of a cow killed by a passing train, at the way station of Chatten. The plaintiff below recovered, and the company brings the case here by appeal, and asks a reversal of the judgment on the ground that the verdict of the jury is not sustained by the evidence.
It was formerly lawful to suffer domestic animals to run at large in this State, but there is now a statute making it unlawful for the owners of domestic animals to suffer the same to run at large in any county in this State, except where it shall have been legalized subsequently to the passage of the statute, by a vote of the county, at a general election. Laws 1871-2, p. 116. There is no evidence of any vote upon the subject having been taken in Adams county, where the accident occurred. It occurred in May, 1873, after the law went into effect.
The evidence is very clear that, at the time of the accident, and before, the cow was running at large by sufferance of appellee. She was killed at a place where the company was not required to fence, upon a highway crossing over the track, and came along in the highway on to the track upon the crossing. The animal, then, was unlawfully upon the railroad track, and a different liability attaches to the railroad company than would, in case the cow had been lawfully running at large, and had been lawfully upon the crossing; and former decisions, under the law permitting cattle to run at large, may not apply fully under the law as it now is, when animals are killed at places where the company is not required to fence, and no neglect in fencing is involved.
The rule of liability in such a case as the present, where an animal is unlawfully upon a railroad track, we conceive to be, that the company is not, in general, liable, unless its servants, after they discovered that the animal was in danger, might, by the exercise of proper care and prudence, have prevented the injury; that it is not sufficient, in such case, to charge the company, to show that they were running at a high rate of speed, or without proper care in other respects. 1 Redf. Law of Railways, sec. 126, 1, 9, and cases cited in note; and see Godfrey v. Illinois Central...
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