Toledo v. Deacon

• Decision Date: 31 January 1872
• Citation: 1872 WL 8114,63 Ill. 91
• Parties: TOLEDO, PEORIA AND WARSAW RAILWAY CO.v.JUSTICE DEACON.
• Court: Illinois Supreme Court

63 Ill. 91

1872 WL 8114 (Ill.)

TOLEDO, PEORIA AND WARSAW RAILWAY CO.

v.JUSTICE DEACON.

Supreme Court of Illinois.

January Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Fulton county; the Hon. CHAUNCEY L. HIGBEE, Judge, presiding.

Mr. G. BARRERE, for the appellant.

Mr. J. S. WINTER, for the appellee.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

There is no dispute that the horses were killed, but it is urged that there is no proof that the injury was done by the train of the appellant corporation, or that its railway was located through the corporate limits of the town of Cuba.

It is true, that no witness designated the company by its name, but all the witnesses, including the officers and employees of the company, spoke of a railroad and a train within the limits of the village, and the jury must have known the railway to which reference was made.

The only question of fact involved is, was the train, at the time of the alleged trespass, running at a greater rate of speed than five miles per hour? The evidence satisfactorily answers this question in the affirmative, and the finding of the jury was upon sufficient testimony, and ought not to be disturbed.

The authorities of the village had enacted the following ordinance:

“That it shall be unlawful for any railroad company, by themselves or their agents, to run at a greater rate of speed within the corporate limits of the town of Cuba than five miles per hour.”

The penalty for its violation was not less than $10 nor more than $100.

Some hypercriticism has been indulged in regard to this ordinance, and it is also contended that its enforcement was an interference with the chartered right of the company to regulate the speed of its own trains.

The meaning of the ordinance is plain enough to be easily understood by those who are to be affected by it. It might have been more formal, but the sense is apparent.

Though the legislature has granted franchises to railway corporations, and authorized them to procure the right of way, and operate their trains by the power of steam, yet they have not unlimited discretion in the regulation of the speed of trains. They can not act recklessly and in disregard of the safety and rights of others. The State has reserved to itself the power to enact all police laws necessary and proper to secure and protect the life and property of the citizen. Prominent amongst the rights reserved, and which must inhere in the State, is the power to regulate the approaches to and the crossing of public highways, and the passage through cities and villages, where life...