Toledo, Peoria & Warsaw Railway Co. v. Sweeney

41 Ill. 226

• Court: Illinois Supreme Court
• Decided: April 15, 1866
• Status: Published

Opinion

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.