Ohio & Mississippi Railroad v. Brown, 25 Ill. 124 (1860)

Nov. 1860 · Illinois Supreme Court

25 Ill. 124

Ohio and Mississippi Railroad Company, Appellant, v. Epperson W. Brown, Appellee.

APPEAL FROM MARION.

The Supreme Court will not disturb a verdict which is supported by evidence.

This was an action on the case for killing stock. The declaration was framed in accordance with the statute concerning fencing, and contained a negative of all the exceptions named in the first section of that statute. The declaration averred that five head of stock were killed, and also averred that it was not at any place or point where the statute holds the railroad company exempt from liability for killing stock. It also averred that the killing was on the Ohio and Mississippi Railroad, and by the cars running on that road.

The cause was tried before a jury, and a verdict was recovered with damages in the sum of $735. Motion was made in arrest of judgment, and for a new trial. The court overruled the motion, and entered judgment on the verdict. Exceptions were taken, appeal prayed and allowed.

Wm. Homes, for Appellant.

S. L. Bryan, for Appellee.

Walker, J.

This record only presents questions of fact, for our determination. It is urged that the evidence fails to show that the animals were killed, or if so, that it was by the appellants. The evidence is not clear and conclusive to establish these facts, yet it does tend to prove each of them. And whilst we are not prepared to hold that we should have disturbed the verdict, had the finding been different, yet there was evidence to sustain the verdict. The finding is not so clearly against the weight of evidence as to require that it should be disturbed. These questions were fairly presented to the jury, and they, acting within their province, have found the facts, and we are not inclined to disturb their verdict.

The instructions, as they were given, announced the law correctly, and we cannot perceive that they were calculated to mislead the jury. Nor can we perceive any error in this record, for which the judgment of the court below should be reversed, and therefore it must be affirmed.

Judgment affirmed.