Mobile & Ohio Railroad v. Moore

Appellate Court of Illinois

Mobile & Ohio Railroad v. Moore

34 Ill. App. 519, 1889 Ill. App. LEXIS 290

CourtAppellate Court of Illinois

DecidedFebruary 4, 1890

StatusPublished

Cited by1 cases

This text of 34 Ill. App. 519 (Mobile & Ohio Railroad v. Moore) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mobile & Ohio Railroad v. Moore, 34 Ill. App. 519, 1889 Ill. App. LEXIS 290 (Ill. Ct. App. 1890).

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Opinion

Phillips, J.

This is an action on the case for recovery for the killing of a mare. The declaration charges negligence in failing to erect and maintain fences on both sides of the railroad, and cattle guards ata public road crossing. The evidence in this record shows the mare was struck and killed at a road crossing. The records of the county board of Union county, for the June term, 1884, show the location of a road upon the condition that the county pay no damages, the petitioners having agreed in open court to pay all costs and damages. The evidence of Reidel and Grappo shows the payment of all damages and costs. The records of the county board of Union county show the filing of a supplemental plat and an amended report by the viewers, an approval of the report and plat, and an order for the opening of the road. The evidence in this record shows the location and order for opening this road, and that the mare passed along the road to the road-crossing on the railroad, where she was struck.

The verdict was for plaintiff, and damages assessed at $125 and an attorney’s fee. The plaintiff sought to recover because there were no cattle guards along the sides of the road at the railroad crossing.

The question to be considered is the place where the animal got on the track, and the absence of a fence or cattle guard at a public road crossing can not affect the question where the animal gets on the track and is injured at a public road crossing. G. W. R. R. Co. v. Morthland, 30 Ill. 451; G. W. R. R. Co. v. Hanks, 36 Ill. 281; C., B. & Q. R. R. Co. v. Farrelly, 3 Ill. App. 60; P. D. & E. Ry. v. Schiller, 12 Ill. App. 443.

In this case it appears from the evidence that the animal was struck and killed at the point where it went on the track ; that place was a public road crossing.

The absence of cattle guards along the sides of the road„ can not affect the question. Under the evidence the plaintiff is not entitled to recover. The instruction to find for tlie defendant should have been given.

Both instructions given for the plaintiff were erroneous, and it was error to modify each of defendant’s instructions as modified.

The judgment is reversed.

Judgment reversed.

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Phillips, J.

This is an action on the case for recovery for the killing of a mare. The declaration charges negligence in failing to erect and maintain fences on both sides of the railroad, and cattle guards ata public road crossing. The evidence in this record shows the mare was struck and killed at a road crossing. The records of the county board of Union county, for the June term, 1884, show the location of a road upon the condition that the county pay no damages, the petitioners having agreed in open court to pay all costs and damages. The evidence of Reidel and Grappo shows the payment of all damages and costs. The records of the county board of Union county show the filing of a supplemental plat and an amended report by the viewers, an approval of the report and plat, and an order for the opening of the road. The evidence in this record shows the location and order for opening this road, and that the mare passed along the road to the road-crossing on the railroad, where she was struck.

The verdict was for plaintiff, and damages assessed at $125 and an attorney’s fee. The plaintiff sought to recover because there were no cattle guards along the sides of the road at the railroad crossing.

The question to be considered is the place where the animal got on the track, and the absence of a fence or cattle guard at a public road crossing can not affect the question where the animal gets on the track and is injured at a public road crossing. G. W. R. R. Co. v. Morthland, 30 Ill. 451; G. W. R. R. Co. v. Hanks, 36 Ill. 281; C., B. & Q. R. R. Co. v. Farrelly, 3 Ill. App. 60; P. D. & E. Ry. v. Schiller, 12 Ill. App. 443.

In this case it appears from the evidence that the animal was struck and killed at the point where it went on the track ; that place was a public road crossing.

The absence of cattle guards along the sides of the road„ can not affect the question. Under the evidence the plaintiff is not entitled to recover. The instruction to find for tlie defendant should have been given.

Both instructions given for the plaintiff were erroneous, and it was error to modify each of defendant’s instructions as modified.

The judgment is reversed.

Judgment reversed.

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34 Ill. App. 519, 1889 Ill. App. LEXIS 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mobile-ohio-railroad-v-moore-illappct-1890.

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