The Toledo v. Mcclannon

Decision Date30 April 1866
PartiesTHE TOLEDO, PEORIA AND WARSAW RAILWAY COMPANYv.JOHN MCCLANNON.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Iroquois county; the Hon. CHARLES R. STARR, Judge, presiding.

This was an action on the case, brought by John McClannon, in the Iroquois Circuit Court, against the Toledo, Peoria and Warsaw Railway company, to recover for killing six head of cattle on the 17th day of September, 1865, on their road, with their engines and cars, at a place where they were by law required to fence their road, but had entirely failed. A plea of the general issue was filed, and issue joined on the plea. A trial was had at the February Term, 1866, by the court and a jury. It appeared on the trial, that six of plaintiff's cattle were killed, and appeared to have been done by a train of cars, and about the 15th or 17th of September, 1865. Some were killed, and others crippled so that they were killed by the employees of the road. The road was not fenced at the place of the accident, and it was not at a road crossing in a city, town or village.

The jury found the issues for the plaintiff, and assessed his damages at $150. Defendants entered a motion for a new trial, which was overruled by the court, and judgment was rendered upon the verdict, from which defendant has appealed to this court, and asks a reversal of the judgment of the court below.

Messrs. ROFF & DOYLE, and INGERSOLLS & PUTERBAUGH, for the appellants.

Messrs. WOOD & LONG, for the appellee.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

This was an action on the case brought by McClannon, in the Iroquois Circuit Court, against The Toledo, Peoria and Warsaw Railway company, for alleged negligence, in killing a number of cattle, on their track. The declaration alleges that the company had failed to fence their road at the place where the injury was done, although their road had been open and in use for more than six months; and that the injury occurred at a place not exempted from being fenced, by the statute. The evidence showed that the injury did not occur at a road crossing in a town or village, or more than five miles from a settlement; and that the road had been in use for five years or more; and that it was not fenced at the place where the cattle were injured; and there was an abundance of evidence from which the jury were warranted in inferring, that the cattle were killed by a locomotive running on...

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7 cases
  • Flansburg v. Basin
    • United States
    • United States Appellate Court of Illinois
    • December 31, 1878
    ... ... & R. I. R. R. Co. v. Hutchins, 34 Ill. 108; C. & R. I. R. R. Co. v. Crandall, 41 Ill. 234; T. P. & W. R'y Co. v. McClannon, 41 Ill. 238; Davis v. Hoeppner, 44 Ill. 306; Hope Ins. Co. v. Lonegan, 48 Ill. 49; Sawyer v. Daniels, 48 Ill. 269; C. F. R. & B. Co. v. Jameson, 48 ... ...
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    • United States Appellate Court of Illinois
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  • Bois v. Stoner
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    ... ... v. Hutchings, 34 Ill. 108; C. R. I. & P. R. R. Co. v. Crandall, 41 Ill. 234; Vinegar Hill v. Busson, 42 Ill. 45; T. P. & W. R. R. Co. v. McClannon, 41 Ill. 238; Hope Ins. Co. v. Lonergan, 48 Ill. 49; Davis v. Hppner, 44 Ill. 306; Palmer v. Weir, 52 Ill. 341; Chillicothe Ferry Co. v. Jameson, 48 ... ...
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