delivered the opinion of the court.
Stewart v. Chicago, Bloomington & Decatur Railway Co., 190 Ill. App. 484 (1914)
Oct. 16, 1914
·
Illinois Appellate Court
190 Ill. App. 484
B. A. Stewart, Appellee, v. Chicago, Bloomington & Decatur Railway Company, Appellant.
(Mot to he reported in full.)
Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myees, Judge, presiding. Heard in this court at the April term, 1914.
Affirmed.
Opinion filed October 16, 1914.
Statement of the Case.
Action by B. A. Stewart against the Chicago, Bloomington & Decatur Railway Company to recover the *485value of a horse killed by one of defendant’s cars upon its right of way. The declaration charged that it was the duty of defendant to keep and maintain suitable and sufficient cattle guards to prevent animals from going upon the right of way, and that it negligently failed to keep and maintain such suitable and sufficient cattle guards, as provided by statute, at the point where plaintiff’s horse passed over and upon the right of way. The jury returned a verdict in favor of plaintiff for two hundred and fifty dollars, and also allowed attorney’s fees to the amount of twenty-five dollars. To reverse the judgment entered on the verdict, defendant appeals.
Abstract of the Decision.
1. Railroads, § 298 * —when evidence shows insufficient cattle guard. In an action for stock killed on the right of way of a railway company, where it was charged that defendant did not maintain a suitable and sufficient cattle guard, evidence held to show the cattle guard was not such as contemplated by statute, where the only defense was that it was of standard construction and was of the same kind used by other railroads, and plaintiff’s evidence ■ showed that stock had passed over it on numerous occasions.
2. Railroads, § 298*—sufficiency of cattle guards. The statute’s requirements with reference to sufficiency of cattle guards'cannot be amended by general usage or custom among railroads.
3. Appeal and error, § 1522*—when return of two verdicts not prejudicial. The fact that the jury rendered two verdicts, one for damages and the other fixing the amount of attorney’s fees, held not prejudicial error.
This case was before the Appellate Court on a former appeal in 180 Ill. App. 608.
Livingston & Bach, for appellant; Sigmund Livingston, of counsel.
N. W. Brandican, for appellee; Welty, Sterling & Whitmore, of counsel.