Citations
- 20 Ill. App. 639
Full opinion text
Wilkin, P. J.
This suit originated before a justice of the peace, and was brought to recover the value of a mare, alleged to have been killed on the road of appellant by its engine or cars, it having failed to maintain suitable fences and gates as required by Sec. 62, C. 114, R. S.
The trial before the justice of the peace resulted in a judgment for appellant for costs, and appellee appea]ed to the county court. On the third trial in that court (juries having failed to agree on the first and second) a verdict was returned for appellee, fixing his damages at $100. Hotions for new trial and to limit the number of witnesses whose fees should he taxed against appellant, being overruled, judgment was entered on the verdict, and appeal prayed and allowed to this court. Humerous errors are assigned on the record, but it is only necessary to notice a few of them. The motion to limit the number of witnesses whose fees should be taxed against appellant, is authorized by Sec. 15, C. 33, R. S., and is addressed to the discretion of the trial court. While the facts appearing in this record would have justified an order sustaining the motion, we can not say that in overruling it there was such an abuse of discretionary power as to warrant a reversal of the judgment on that ground. Appellant asked twenty-four instructions, thirteen of which were given, and it now assigns as error that seven were refused. The law governing the rights of the parties being plain, and susceptible of statement in a few brief instructions, there was neither necessity nor excuse for presenting even the number given, and the court below was fully justified in refusing those not given. They announce no rules of law applicable to the case, not contained in those given. Before noticing the instructions given at the instance of appellee, it is proper to review briefly the evidence as applied to his theory of the case. In doing so it may be conceded that if the animal got upon the track of api pell ant, and was there injured by its engine or cars, it did so either by reason'of a failure of appellant to keep its fences in repair or through the negligence of its servants in not keeping a gate at a farm crossing closed. The substantial question of fact being whether or not the injury complained of was, within the meaning of the statute, caused by the locomotive of appe1lant. There is an entire absence of proof, either direct or circumstantial, that the engine or cars of appellant actually came in contact with the animal. No one pretends to have seen her struck. No marks or bruises were found upon' her indicating that she had been knocked or thrown from the track. Appellee himself testified that he examined her carefully and “ found no bruises on her hind, part's, or scratched places, or where the hair was rubbed off.”
Other witnesses testify to the same effect. All the witnesses who speak of injuries, locate them on the head and breast, and appellee, with others, describes a place in the road near a crossing which they say indicated that she had been thrown or fallen from the grade. In the light of all the evi