#### Chicago, Peoria & St. Louis Railway Company v. Fred Laumyer.

1. Declaration-—when aided by verdict. A verdict will aid a defective statement of a good cause of action, but will not aid a statement of a defective cause of action.

Action on the case for injuries to personal property. Appeal from the Circuit Court of Mason County; the Hon. Thomas N. Mehan, Judge, presiding.

Heard in this court at the May term, 1905.

Affirmed.

Opinion filed October 9, 1905.

H. L. Child, for appellant; E. Nischwitz and Wilson & Warren, of counsel.

I. E. Brown, for appellee.

Mr. Justice Gest

delivered the opinion of the court.

The declaration in this case is based upon section 1 of the act in relation to fencing and operating railroads, but fails to aver that appellant’s road had been open for use for six months prior to the injuries complained of. The declaration was demurrable for that reason; appellant did not demur, but filed the general issue. The evidence shows satisfactorily that on November 17,1903, four of plaintiff’s horses were killed and one was badly injured by a train of *50cars running on appellant’s road; that the horses got on the track by reason of appellant’s negligence in failing to maintain the fences on its right of way as required by the statute, and without fault on the part of appellee. There is also evidence from which the jury could reasonably conclude that the road had been open for use more than six months previous to that time. Although a declaration be defective in statement, nevertheless after verdict it may be held sufficient, unless so defective that it cannot sustain a judgment, A verdict will aid a defective statement of a good cause of action, but will not aid any statement .of a defective cause of action. The verdict in this case, based as it is upon evidence showing a good cause of action, cures the defective statement of the cause of action, in the declaration. Some of the instructions given in behalf of plaintiff are open to criticism but of not such serious character as to require the reversal of this judgment, which is affirmed.

Affirmed.