The Toledo v. Hamilton

• Decision Date: 31 January 1875
• Citation: 76 Ill. 393,1875 WL 8218
• Parties: THE TOLEDO, WABASH AND WESTERN RAILWAY CO.v.EPHRAIM S. HAMILTON et al.
• Court: Illinois Supreme Court

76 Ill. 393

1875 WL 8218 (Ill.)

THE TOLEDO, WABASH AND WESTERN RAILWAY CO.

v.EPHRAIM S. HAMILTON et al.

Supreme Court of Illinois.

January Term, 1875.

APPEAL from the Circuit Court of Ford county; the Hon. O. L. DAVIS, Judge, presiding.

This was an action on the case, by Ephraim S. Hamilton and William Cessna against the Toledo, Wabash and Western Railway Company, to recover for loss sustained on a lot of hogs from the want of watering and properly caring for them while being transported. The material facts of the case appear in the opinion. Mr. OWEN T. REEVES, for the appellant.

Messrs. WOOD & LOOMIS, for the appellees.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This action was brought to recover for the loss sustained on a lot of hogs, resulting, as alleged, from the negligence of the railroad company in failing to water and care for them while in its charge, being shipped from Rankin, Illinois, to Toledo, Ohio. The evidence preserved in the record makes a clear case against the company within the rule declared in the Illinois Central Railroad v. Adams, 42 Ill. 474, and we refer to that case as stating the principles of law which must control this decision.

Upon the questions of fact involved, the evidence is abundant to sustain the finding of the jury. It is not contested the hogs died for the want of water while in the custody of the carrier. The excuse insisted upon is, the company had no water that could be used for that purpose on the line of its road between the shipping point and Toledo, where the hogs were to be delivered to another carrier. The burden of proof to show exemption from liability as a carrier rested upon defendant. This it has not done. The proof shows there was water at Hoopeston. The conductor of the train was apprised of the suffering condition of the hogs at that station, and requested to give them water. According to plaintiff's testimony, he declined to comply with this request, not because there was no water, but if he ran slow enough by the tank to water the hogs he would not be able to get his train up the grade beyond.

It is also insisted, all the water at that point was wanted for the use of the engines running on the road. Whether there was enough water for the use of the engines and hogs does not appear from anything in the evidence, nor do we regard it as material. There was certainly water there in addition to what was required for present use, and the servants of the company in...