Peirce v. Wright

73 Ill. App. 512, 1897 Ill. App. LEXIS 362

• Court: Appellate Court of Illinois
• Decided: February 9, 1898
• Status: Published

Opinion

Mr. Justice Glenn

delivered the opinion oe the Court.

This suit was brought by appellee to recover the value of two horses killed by the servants and employees of appellant in operating an engine and train of cars on appellant’s railroad track near Charleston, Illinois, on December 25, 1896. A trial was had with a jury in the Circuit Court of Coles County. A verdict was rendered for appellee for $100 and judgment entered on the verdict. An appeal was prosecuted from this judgment to this court.

The only error insisted on is that the verdict of the jury is not sustained by the evidence.

The train which killed the horses was a north-bound train and running at the rate of twenty-five miles an hour.

The engineer who had charge of the engine prilling this train, testified that the first he saw of the horses they ran on the track ten yards in front of his engine, and he killed them both at the same time. He is the only witness who testifies to seeing the horses killed. Upon his testimony alone appellant relies for a reversal of-this judgment.

The horses of appellee, it is conceded, were trespassing upon the right of way and track of appellant.

To enable a party to recover of a railroad company for stock killed while trespassing upon its right of way and track, he must show that its servants in some way were notified that the stock were in fact on or likely to be on the track, and they by the exercise of proper care and prudence could have prevented the injury. I. C. R. R. Co. v. Noble, 142 Ill. 578; C. C. C. & St. L. R’y Co. v. Ahrens et al., 42 Ill. App. 434.

The horses, when found the next morning, were from one hundred and twenty-five yards apart. One had been dragged from seventeen to twenty-five yards, so they must have been at least one hundred yards apart when struck with the engine. This statement is not controverted. It squarely contradicts the statement of the engineer that he killed them both at once and that they both ran up on the track about ten yards in front of his engine. The view was unobstructed and the track straight for some distance south from where the horses were struck. The engineer on the south-bound train which came in about thirty minutes before the collision, testified that with an imperfect headlight he saw the horses for six hundred feet in front of his engine.

In the case of I. C. R. R. Co. v. Noble, supra, the court says: “Doubtless when the view is unobstructed, so that if the engineer is at his post and in the proper discharge of his duties the trespassing animals must be within the range of his vision, the presumption will readily and perhaps necessarily arise that he does see them, and his subsequent conduct as to being negligent or otherwise, will be judged upon that basis.

With a headlight, lighting up the right of way for six hundred feet, a straight track, without anything to obstruct the view, it seems the presumption necessarily arises that the engineer must have seen the horses about to come upon the track in time by the exercise of due care and prudence to have avoided the injury. One of the horses was at least three hundred feet in front of the engine. No- bell was rung or whistle sounded.

Whether the statement made by the engineer with reference to the killing of the horses was correct and to be relied upon, has been passed on by a jury, and they have found it was not.

The jury should not arbitrarily and without good reason disregard the testimony of any witness, but the testimony of a witness may be overcome by the proof of circumstances and facts inconsistent with the story told by him.

We think the jury were authorized from the evidence in this case to return the verdict they did.

The judgment of the Circuit Court will be affirmed.