{
  "id": 2538321,
  "name": "Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Frank Vickery",
  "name_abbreviation": "Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Vickery",
  "decision_date": "1904-08-24",
  "docket_number": "Gen. No. 4,340",
  "first_page": "293",
  "last_page": "296",
  "citations": [
    {
      "type": "official",
      "cite": "116 Ill. App. 293"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "173 Ill. 553",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        5539819
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/173/0553-01"
      ]
    }
  ],
  "analysis": {
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    "simhash": "1:baa66aa2a2c5343e",
    "word_count": 1210
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  "last_updated": "2023-07-14T20:50:54.720168+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Frank Vickery."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Dibell\ndelivered the opinion of the court.\nVickery recovered a verdict and a judgment for damages and $25 attorney\u2019s fees in a suit against the railway company. It was stipulated that $25 was a reasonable attorney's fee for plaintiff. The only question presented upon this appeal by defendant is whether plaintiff was entitled to recover an attorney\u2019s fee.\nSection of the act in relation to fencing and operating-railroads is as follows: \u201cIt shall be the duty of all railroad corporations to keep their right of way clear from all. dead grass, dry weeds, or other dangerous combustible material, and for neglect shall be liable to the penalties named in section 1.\u201d Said section 1 prescribes other duties, and permits the party injured by their non-performance to recover damages \u201c and reasonable attorney\u2019s fees.\u201d Certain counts of plaintiff\u2019s declaration charged that defendant did not keep its right of way \u201c free from dry grass, weeds and other combustible material,\u201d but \u201c negligently, carelessly and unlawfully suffered large quantities of such dry o-rass and weeds and combustible material to accumulate and remain upon the right of way, whereby fire from a locomotive engine of defendant on its \u2018railroad ignited the said dry grass, weeds and combustible material,\u201d and spread upon plaintiff\u2019s lands and destroyed certain property. It will be observed that these charges do not use the precise words of the statute. The statute says, \u201c dead grass,\u201d while this declaration uses the term \u201cdry grass.\u201d The statute says \u201c dry weeds,\u201d while the declaration only uses the word \u201c weeds,\u201d unless the adjective \u201c dry \u201d where used in the declaration can be construed to apply to both grass and weeds. The declaration omits the word \u201c dangerous,\u201d which the statute places before the words \u201c combustible material.\u201d From this it is argued the suit is not brought under the statute, but for negligence at common law, and therefore the attorney\u2019s fee authorized by the statute referred to could not be recovered in this action.\nThe bill of exceptions recites that plaintiff gave evidence tending to prove that at the time in question defendant\u2019s right of way adjoining plaintiff\u2019s land \u201c was not free from dead grass, dry weeds or other dangerous combustible material,\u201d and that the fire was communicated to plaintiff\u2019s property by reason of the existence on defendant\u2019s right of way of such \u201c dead grass, dry weeds and other dangerous combustible material; \u201d and that defendant gave evidence tending to prove such fire was not communicated to plaintiff\u2019s property \u201c by reason of the existence of any dead grass, drv weeds or other dangerous combustible material uoon its right of way.\u201d- The instructions given for plaintiff relating to the causes of action set up in the counts of the declarati\u00f3n here under consideration, based the right to recover upon the presence-on defendant\u2019s right of way of \u201c dead grass, dry weeds and other dangerous combustible material,\u201d by reason whereof fire was kindled from defendant\u2019s engine, and communicated to plaintiff\u2019s property, and said that if the fires in question resulted from the neglect of defendant to keep its right of way clear from \u201c dead grass, dry weeds or other dangerous combustible material,\u201d theti' the jury could allow a reasonable attorney\u2019s fee. The court refused to instruct the jury at defendant\u2019s request, that \u201c even though you may believe from the evidence that the defendant set the fires in question, you are instructed that you have no right to allow plaintiff anything for his attorney\u2019s fees.\u201d\nIt is therefore seen that plaintiff introduced proof tending to make a case under the statute, and that defendant introduced proof tending to show that plaintiff was not injured by a failure of defendant to comply with the statute. The instructions of the court given for plaintiff required proof of a case under the statute. The case therefore was tried as if the declaration sufficiently charged a violation of the statute. Under the rule laid down in City of East Dubuque v. Burhyte, 173 Ill. 553, and in the cases there cited, it must be presumed after verdict that all circumstances necessary to complete the cause of action defectively stated in the declaration were proved at the trial, or, as usually and more briefly stated, the declaration is good after verdict. But defendant says that though good after verdict, it is onl^y good as stating a case entitling plaintiff to recover at common law, and not under the statute, and that the attorney\u2019s fee provided by the statute is in the nature of a penalty, and a case under the statute must be strictly stated in the declaration before the penalty can be enforced. Notwithstanding this argument, we think the allowance of attorney\u2019s fees here is to be supported upon the principle laid down in the case above cited. Defendant knew at the trial that plaintiff was seeking to recover an attorney\u2019s fee. It stipulated with him what would be a reasonable attorney\u2019s fee, thus obviating the necessity of making formal proof. It is true said stipulation also \u2019 said : \u201c Said defendant denying that the said plaintiff is entitled to recover any attorney\u2019s fee from the defendant under the allegations of the declaration and the proofs offered in the case.\u201d But this did not point out that defendant was relying upon the absence of the word \u201c dead \u201d before the word \u201c grass,\u201d \u201c dry \u201d before \u201c weeds,\u201d and \u201c dangerous \u201d before \u201c combustible,\u201d in the declaration. This denial was general, and did not point out the defects now relied upon. If defendant had raised the objection at the trial that the language of the declaration varied from the words of the statute in the particulars here suggested, plaintiff would have had an opportunity to amend and insert the omitted words. We conclude that as defendant was fully apprised by the proof that plaintiff sought to recover under the statute, and to recover the attorney\u2019s fee provided by that statute, and did not raise this specific objection and furnish an opportunity to amend, it cannot be heard to question the allowance after verdict on the ground here relied upon. We therefore deem it unnecessary to consider whether or not the words stated in the declaration constitute in fact a substantial departure from the statute, of which defendant could have availed to defeat the allowance of an attorney\u2019s fee by a specific objection at the trial, if no amendment had then been made.\nThe judgment is affirmed. Affirmed.",
        "type": "majority",
        "author": "Mr. Justice Dibell"
      }
    ],
    "attorneys": [
      "W. R. Hunter, for appellant.",
      "Bert L. Cooper, for appellee."
    ],
    "corrections": "",
    "head_matter": "Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Frank Vickery.\nGen. No. 4,340.\n1. Attorney\u2019s fees\u2014when, properly allowed in action against railroad company for failing to keep its right of way clear of dead grass, etc. Notwithstanding the declaration in such a case charged failure to keep such right of way clear of \u201c dry grass,\u201d etc., and in other respects failed to follow the exact language of the statute, yet the allowance of attorney\u2019s fees is proper where the case was tried upon the theory of, and the proof brought the case within, the language of the statute.\nAction to recover penalty. Appeal from the Circuit Court of Kankakee County; the Hon. Charles B. Garnsey, Judge, presiding. Heard in this court at the April term, 1904.\nAffirmed.\nOpinion filed August 24, 1904.\nRehearing denied October 5, 1904.\nW. R. Hunter, for appellant.\nBert L. Cooper, for appellee."
  },
  "file_name": "0293-01",
  "first_page_order": 311,
  "last_page_order": 314
}