Ohio & Mississippi Railroad v. Taylor

27 Ill. 207

Opinion

Breese, J.

The principal question in dispute before the Circuit Court, was, as appears by the testimony in the record, in regard to the value of the animal killed. It is however, alleged as error, that there was no evidence given by the plaintiff, and no proof in the cause, that the place where the injury occurred, was not at a public crossing.

Under the statute, railroads are not required to be fenced at such crossings; therefore, it was incumbent on the plaintiff to negative by proof, there being no pleadings in the case, that there was no public crossing where the injury occurred, but was at a point on the road, the company was required to fence, ana this, in conformity to repeated rulings of this court. O. & M. R. R. Co. v. Brown, 23 Ill. 94; Galena & Chicago U. R. R. Co. v. Sumner, 24 ib. 631; Ill. Cent. R. R. Co. v. Williams, ante, 48.

There is also a defect in the proof to connect the defendants below, with the injury. The proof is, the animal was killed on the railroad. What railroad % There may be, for aught the court may know, more railroads in Richland county than the defendant’s road. The jury could not know the fact that itwas on the defendant’s road without proof of it. They could take nothing of this kind for granted. It should have been proved. It is not one of the facts courts and juries are bound judicially to know, but must be proved. As to the proof of the value of 'the animal, we did not, in the case of the same plaintiffs against Irvin, (cmte, 178,) consider it objectionable to give in evidence the' opinions of persons presumed to be familiar with such kinds of property.

There being no proof in this cause, that the injury complained of, was done at a place where the road was required to be fenced, and no proof that it was on the defendant’s road, the judgment must be reversed, and the cause remanded.

Judgment reversed.