Toledo, Peoria & Warsaw Railway Co. v. Sweeney, 41 Ill. 226 (1866)

April 1866 · Illinois Supreme Court

41 Ill. 226

The Toledo, Peoria and Warsaw Railway Co. v. Thomas Sweeney.

1. Fencing railroads—whether the necessity is obviated by an embankment. The necessity of fencing a railroad at a given point is not obviated by there being an embankment at that place from twelve to twenty feet in height, it not appearing that the embankment was sufficient to prevent stock from getting upon the track.

2. And the necessity for a fence in such a case would be shown by proof that cattle had got upon the road.

3. Measure oe damages—in suit against a railroad for hilling stock. In a suit against a railroad company for killing the cattle of the plaintiff, where it appears the weather was warm and the cattle when found were swollen and unfit for beef, the plaintiff is entitled to a' verdict for their full value.

Appeal from the Circuit Court of Iroquois county;, the Hon. Charles R. Starr, Judge, presiding.

The opinion of the court contains a sufficient statement of the case.

Messrs. Ingersolls & Puterbaugh, for the appellant.

Messrs. Wood & Losa, for the appellee,

Mr. Justice Lawrence

delivered the opinion of the Court:

This was an action brought against the railway company for killing cattle. It was proved, that the road was not fenced, and a verdict was found and judgment was rendered for the plaintiff.

It is urged in behalf of appellant, that there was no necessity for fencing the road, since there was an embankment from twelve to twenty feet in height. The embankment might be of this height and yet so gradual in its slope that cattle could descend it. There is no evidence from which it is to be inferred, that a fence was unnecessary. That it was necessary, is proven by the fact, that the cattle were on the track.

It is urged, that the damages were too high, as the cattle were fit for beef. The record states, that the weather was warm, and the cattle, when found, were swollen, a fact not stated in the abstract. The plaintiff was, therefore, entitled to a verdict for the full value of the cattle.

Judgment affirmed.