{ "id": 2489239, "name": "Toledo, St. Louis & Western Railroad Company v. John Delliplane", "name_abbreviation": "Toledo, St. Louis & Western Railroad v. Delliplane", "decision_date": "1905-03-17", "docket_number": "", "first_page": "122", "last_page": "125", "citations": [ { "type": "official", "cite": "119 Ill. App. 122" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "149 Ill. 173", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5472226 ], "opinion_index": 0, "case_paths": [ "/ill/149/0173-01" ] }, { "cite": "75 Ill. App. 659", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5176553 ], "opinion_index": 0, "case_paths": [ "/ill-app/75/0659-01" ] }, { "cite": "72 Ill. App. 601", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5241072 ], "opinion_index": 0, "case_paths": [ "/ill-app/72/0601-01" ] }, { "cite": "106 Ill. App. 634", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2577422 ], "opinion_index": 0, "case_paths": [ "/ill-app/106/0634-01" ] } ], "analysis": { "cardinality": 360, "char_count": 6658, "ocr_confidence": 0.599, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08134914429374068 }, "sha256": "8d8a33f71ac13a5f6938b7a0284026b104c2a5030848d83aee0bb9f590c83723", "simhash": "1:ba6333a253b8c6b2", "word_count": 1177 }, "last_updated": "2023-07-14T17:07:30.746032+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Toledo, St. Louis & Western Railroad Company v. John Delliplane." ], "opinions": [ { "text": "Mr. Justice Creighton\ndelivered the opinion of the court.\nThis was a suit by appellee against.appellant, commenced before a justice of the peace of Madison county, to recover the value of mule colt, .killed by an engine and cars of appellant. The suit is based; upon the statute -requiring raih Toad companies to fence their ' tracks, and,making them liable, for damages which; may \u00a1he done by, engines? and cars, to . cattle, hprses. and,, other live stock, where the law rerquires the tracks to, be,;fenced and, .where they., are not so fenced.\nThis case was before, this court at a former term and is reported, in 106 Ill. App. 634. The controlling, facts of the case as they appear in the record now before us are not so materially, different from the facts disclosed, in the former record as to require restatement of the case.\nThe judgment of the trial court was reversed and -the pause, remanded on the former appeal, because. of errors in giving and refusing certain instructions; as to ,the; law of contributory negligence. Upon that appeal counsel, for .appellee contended that, it was apparent .from the evidence, as \u2018a matter pi- .that appellee was not 'guilty of any 'contributory negligence, , and counsel\u2019 for appellant contended that it was 'apparent from the evidence, a a matter .of law, that appellee was guilty pf \u2018 such contributory negligence as to bar a recovery. And the court held that the facts, of the case' did\u2019 hot\" bring 'it under the extreme'rule\" contended for by either, and said: \u201cThis case falls' within' that largest of all classes,, wherein it is question of fact' for the jury to decide Whether or - not the injured party'Was' guilty bf 'contributory negligence. That question ought to have been submitted' to the jury.\nAppellant\u2019s position, on the appeal now before us is disclosed in the following quotation from counsel\u2019s brief: \u201cWhen this case was last in this court; it was reversed for the reason that the trial court had refused to submit the question of contributory negligence to the jury, and it was said that under the evidence at the former trial, the case came within that class of cases in which the question of contributory negligence must be left to .the jury. At the new trial it was left to the jury, and the jury decided in favor of appellee, but' notwithstanding this finding, we submit that the evidence of appellee\u2019s contributory negligence is so overwhelming that the verdict of the jury is not supported by the evidence.\u201d\nCounsel here renew their contention that in allowing the colt to follow its dam as she was being driven by appellee, in harness to his wagon, he was voluntarily permitting it to run at large, and that this constituted contributory \"negligence pef se and cite a long list of cases in support of their contention. Hot one of the cases 'cited turns upon facts sufficiently analogous to the case at bar to make it controlling here. We are still of opinion that the case falls within that class of cases in which the question of contributory negligence must be left to the jury.\nCounsel complain of the modification, by the trial court, of the fifth and sixth instruction asked by appellant. The fifth, and sixth, as asked were as follows:\n\u201c(5) In an action of this kind, it is the place where the animal goes upon the right of way that determines the liability of the railroad company, and not the place where the animal was killed. And in this action, if you find from the evidence that the plaintiff\u2019s mule colt entered upon the defendant\u2019s right of way at a point, where the defendant was not required to fence, your verdict should find the defendant not guilty.\n\u201c(6) The court instructs you that the .defendant is not bound to fence its tracks where passengers and freight is received and discharged and where public convenience requires that there should be unobstructed access to the building or tracks; and in this case, if you believe from the evidence that the mule in question went upon the railroad track at a place where the same was not required by law to be fenced, as explained to you in the first part of this instruction, and from there wandered down the track or-right of way and was killed, you should find the defendant not guilty.\u201d\nThese instructions as asked did not state the law correctly. We do not understand the law to be as contended for by counsel that in a case like the one at bar, \u201cit is the place where the stock comes upon the right of way, and not the place where it was killed, which determines the railroad company\u2019s liability under the fencing act.\u201d\nThe question here raised has been under consideration in both the Appellate and Supreme Courts of this state. In Wabash R. R. Co. v. Pickrell, 72 Ill. App. 601, the court held: \u201cIt is sufficient for a plaintiff suing a railroad company for the value of stock alleged to have been killed on account of a failure of the company to maintain proper fences and cattle-guards, to show that the stock was killed at a point where the company was required to fence; he need not show that such stock entered upon the right of way at a place where the company was required to erect and maintain fences and cattle-guards.\u201d And in C. & E. I. R. R. Co. v. Blair, 75 Ill. App. 659, the court held: \u201cWhere stock enters a railroad right of way at a place exempt from the operation of the statute in regard to fences and cattle-guards,' and wanders along the track to a place not exempt, because of a failure to erect a suitable fence or cattle-guard, and is there killed by a train, the railroad company is liable.\u201d This view of the law is supported by the opinion of the Supreme Court in A. T. & S. F. R. R. Co. v. Elder, 149 Ill. 173.\nWe find no material error in this record. The judgment of the Circuit Court is affirmed.\nAffirmed.", "type": "majority", "author": "Mr. Justice Creighton" } ], "attorneys": [ "Charles A. Schmenttau and E. G. Glass for appellant; Clarence Brown, of counsel.", "Bandy & Sullivan for appellee." ], "corrections": "", "head_matter": "Toledo, St. Louis & Western Railroad Company v. John Delliplane.\n1. Contributory Negligence\u2014what not, in action for killing of colt. It is not contributory negligence as a matter of law, for the owner of a colt to permit it to follow its dam while being driven.\n2. Fence\u2014what does not established liability of company for failure to. It is not the law that the place where the stock comes upon the right of way, and not the place where it was killed, which determines the railroad company's liability under the fencing act.\nAction commenced before justice of the peace. Appeal from the Circuit, Court of Madison County; the Hon. Charles T Moore, Judge presiding.\nHeard in this court at the February term, 1904. the 1905\nAffirmed.\nOpinion filed March 17, 1905\nCharles A. Schmenttau and E. G. Glass for appellant; Clarence Brown, of counsel.\nBandy & Sullivan for appellee." }, "file_name": "0122-01", "first_page_order": 140, "last_page_order": 143 }