Toledo v. Foster

• Decision Date: 30 April 1867
• Citation: 43 Ill. 415,1867 WL 5056
• Court: Illinois Supreme Court
• Parties: TOLEDO, PEORIA & WARSAW RAILWAY COMPANYv.RUSSELL B. FOSTER.

43 Ill. 415

1867 WL 5056 (Ill.)

TOLEDO, PEORIA & WARSAW RAILWAY COMPANY

v.RUSSELL B. FOSTER.

Supreme Court of Illinois.

April Term, 1867.

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

The facts in this case are fully stated in the opinion. Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

This was an action brought by appellee before a justice of the peace, against appellant, for the killing of his cow with their engine and cars. The trial before the justice resulted in a judgment against appellant, from which an appeal was prosecuted to the Circuit Court, where another trial was had, resulting in a verdict for appellee. A motion for a new trial was entered, which was overruled by the court, and a judgment was rendered on the verdict, to reverse which the case is appealed to this court.

It appears from the evidence, that the animal was killed by the passenger train in January, 1866, within the corporate limits of the town of Fairhaven. Several persons testified that they saw the occurrence, and state that it took place on or near the road or street crossing. It appears, that the train was running at the rate of fifteen or twenty miles an hour. And the evidence strongly preponderates to establish the fact, that the whistle was not sounded nor the bell rung, until the engine was nearly in contact with the animal. That the rate of speed was so great, that the train passed the depot, and had to back up to the station. It is contended, that the evidence shows that the cow was not killed until the train crossed the street, and that appellant was not therefore liable under the thirty-eighth section of the railroad law.

It seems to be established, that when the animal was first seen she was west of the crossing, and that the train was coming from that direction. When thrown from the track she lay east of the street, but whether she ran that distance before being struck, or whether she was carried from the west side of the crossing to the place where she lay, by the engine, does not very clearly appear. But it does appear, that the bell was not ringing or the whistle sounding, when she was first noticed and the train was approaching. If the collision occurred before the train reached the street, then, under the statute, the company were guilty of such negligence as would render it liable for the injury which resulted therefrom. Whether it so occurred was a question for the...