Citations
- 29 Ill. App. 17
Full opinion text
Wat.t.. J.
The appellee recovered a judgment for $200 against appellant on account of damage done to three horses of appellee by a train or trains running upon the railroad of appellant. The ground of recovery was that appellant had neglected to maintain suitable fences and cattle guards, whereby the animals went upon the track.
There was evidence tending to prove the fence at one point was so defective that the animals might have gone over it, and there was evidence tending to prove that they must have gone over a cattle guard. Ho witness saw them go either way, and the proof is circumstantial, resting ■ mainly upon such indications and marks as would support one or the other of these theories. It is certain, injuries were inflicted by a train or trains passing over the road, and if there is enough evidence to show that the fence or cattle guard was deficient, then, upon the facts, a recovery was justified. It was for the jury to determine this question of fact. There was abundant evidence that the fence was bad, although there was a conflict on this point. But the chief difficulty grows out of the fact that there is much to induce the belief that the animals went over the cattle guard and not through the broken fence. It is not very probable that where, as in this case, the breach in the fence is at the point of connection with the cattle guard, a horse would vault the more difficult harrier. The indications referred to, consisting of marks and hair, were mainly on the west side of the cattle guard near the defect in the fence, and it is possible if these were made by the stock when it went on the road, that the defective condition of the fence induced the effort to cross at that point.
Appellant, insisting that the animals jumped over the guard, and that the fence, whether good or bad, is not to ho considered, sought to prove that the guard was such in point of construction, as generally used on that and other roads. This proof was rejected, but appellant was permitted to prove the condition of the guard and its mode of construction, and that it had been found sufficient to turn stock theretofore. This ruling of the court is complained of, as we think, without cause.
The statute required the appellant to make the guard