Chicago & Northwestern Railway Co. v. Diehl, 52 Ill. 441 (1869)

Sept. 1869 · Illinois Supreme Court

52 Ill. 441

Chicago & Northwestern Railway Company v. Daniel Diehl.

Negligence in railroads—requisites of instructions. In an action against a railroad company for killing stock, if an instruction for the plaintiff which undertakes to enumerate the facts upon which a recovery may be had, omits the essential fact that the road had been opened six months, a judgment for the plaintiff will be reversed, unless such omitted fact is shown by the evidence.

Appeal from the Circuit Court of Whiteside county; the Hon. William W. Heaton, Judge, presiding.

The opinion states the case.

Mr. James McCoy, for the appellants.

Messrs. Dinsmore & Stager, for the appellee.

Mr. Justice Lawrence

delivered the opinion of the Court:

This was an action for the recovery of the value of two colts killed by the railway company. The court told the jury to find for the plaintiff in case the evidence showed certain facts, among which it did not enumerate the essential fact that the road had been opened six months. We should not reverse for this if the evidence showed such fact, but it does not, nor does it show any other fact from which this might be inferred. We must, therefore, reverse the judgment and remand the cause.

Judgment reversed.