{ "id": 4875530, "name": "Chicago, Milwaukee & St. Paul Railroad Company v. Almina R. Phillips", "name_abbreviation": "Chicago, Milwaukee & St. Paul Railroad v. Phillips", "decision_date": "1884-02-29", "docket_number": "", "first_page": "265", "last_page": "270", "citations": [ { "type": "official", "cite": "14 Ill. App. 265" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "5 Hun, 343", "category": "reporters:state", "reporter": "Hun,", "opinion_index": -1 }, { "cite": "84 Ill. 179", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2649845 ], "opinion_index": -1, "case_paths": [ "/ill/84/0179-01" ] }, { "cite": "85 Ill. 525", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2776179 ], "opinion_index": -1, "case_paths": [ "/ill/85/0525-01" ] }, { "cite": "103 Ill. 512", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2803795 ], "opinion_index": 0, "case_paths": [ "/ill/103/0512-01" ] }, { "cite": "92 Ill. 245", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2742531 ], "opinion_index": 0, "case_paths": [ "/ill/92/0245-01" ] }, { "cite": "57 Ill. 514", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5239887 ], "opinion_index": 0, "case_paths": [ "/ill/57/0514-01" ] } ], "analysis": { "cardinality": 488, "char_count": 10507, "ocr_confidence": 0.452, "pagerank": { "raw": 2.0733929869218063e-07, "percentile": 0.7580702581501856 }, "sha256": "324a2a1fe721f0d5db90a0d3d8328c03b5356fc45898bb03da2f40790438f105", "simhash": "1:a7e6a4b30c01d436", "word_count": 1871 }, "last_updated": "2023-07-14T16:36:53.324345+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Chicago, Milwaukee & St. Paul Railroad Company v. Almina R. Phillips." ], "opinions": [ { "text": "Lacey, P. J.\nThe judgment in this case will have to be reversed on account of the error in the court in giving the 6th instruction on the part of the appellee, and it will not be necessary to notice all other assignments of errors, as on a new trial the court below may correct them, if any.\nIt will be seen by the two issues presented by the double count charging the appellants with common law negligence and also statutory negligence in not fencing, and by the\u2019evidence and instructions, thatit is impossible to tell which charge the jury found the appellant guilty of and to which act of negligence the death of the colt was attributable.\nIf the loss of the colt was not chargeable to the want of a good and sufficient fence, and was chargeable to common law negligence in running the appellant\u2019s train, then, under the statute, it is plain that no amount could be recovered for attorney\u2019s fees, for such fees can be recovered only where the railroad fails to fence as required by the statute, and damage accrues on account of it, for the recovery of attorney\u2019s fees is purely a statutory right.\nSee. 48, Chap. 114 -of the Pevised Statutes, after providing the manner in which railroads shall be fenced, then further provides: \u201cwhen such fences and cattle guards are not made as aforesaid, or when such fence and cattle guards are not kept in good repair, such railroad corporations shall be liable lor all damages which may be done by the agents, engines or cars of such corporation, to such cattle, horses, hogs, sheep or other stock thereon, and reasonable attorney\u2019s fees in any court wherein suit is brought for such damages or to which the same may be appealed; but where such fences and guards have been duly made and kept in good repair, such railroad coiqroration shall not be liable for any such damages unless negligently or willfully done.\u201d\nIf the statute did not contain the restrictive clause, there could be no possible doubt that no recovery for attorney\u2019s fees could be had in a case where a good and sufficient fence was built and maintained. Then do the words \u201c but ydiere such fence and guards have been duly made and kept in good repair, such railroad corporation shall not be liable for any such damages unless negligently or willfully done,\u201d change the law and make the company liable for attorney\u2019s fees in the case of negligence or willfulness, and not through want of fence?\nThe purport of it is that none of the damages specified in the first part of the section, neither the value of the stock nor the attorney\u2019s fees, shall be collected unless such stock is killed \u201c negligently or willfully.\u201d\nThe statute does not provide, unless it be by necessary implication, that in case the fence is good and sufficient, and the stock is killed \u201c negligently or willfully,\u201d there shall be recovery for the value of the attorney\u2019s fee and the stock. Is it a necessary implication that both are to be recovered for? We think nqt; at common law, only the value of the stock could be recovered for, not attorney\u2019s fees; and the legislature designed by this restrictive clause to make it clear that it did not intend to deprive the injured party of his remedy at common law, but as we think, did not intend to amend the common law so as to enlarge the measure of damages in case there was no fault in the fencing.\nThe object of the statute was to compel the fencing of railroads in the State and remedy the evils growing out of their remaining unfenced; and to accomplish its aim it fixed apenalty by the way of enlarged damages in case of loss in consequence of the fencing not being done and kept in repair. To allow damages for attorney\u2019s fees where the road was not fenced, would create a strong incentive on the part of a railroad corporation to obey the law in regard to fencing, but it would not be more obvious that the legislature intended to enlarge the damages by allowing attorney\u2019s fees to be collected in case of negligence in killing stock where there was no fault in fencing than there would be in numerous other instances where damages may occur on account of the negligence of the employes of railroad companies; attorney\u2019s fees under this section not being collectible, it follows that the 6th of appellee\u2019s given instructions was erroneous, for, by that instruction, in case any recovery was had on any ground, the jury were told that appellee had the right to collect attorney\u2019s fees. The Appellate Court of the Third District has taken a similar view of this statute: W. St. L. & P. Ry. Co. v. Neekirk, 13 Bradwell, 387. We see no objection to the modification of the appellant\u2019s second and third instruction by striking out the words \u201c willfully and maliciously,\u201d and inserting \u201c with want of ordinary care, caution and diligence.\u201d\nIf the engineer or conductor or person conducting a train see cattle on the track, and can, by ordinary care, caution and diligence, avoid injury to them, he is bound to do so, and if he fails, the corporation is liable, no matter if the owner of the stock was negligent in allowing the cattle to get on the track; but if the owner was negligent in allowing his cattle to get on the track, and it was not under the circumstances probable that the stock would be there, the engine driver might not be required to keep so sharp a lookout to discover the cattle as he otherwise would. T. P. & W. Ry. Co. v. Bray, 57 Ill. 514; C. & A. R. R. Co. v. Kellam, 92 Ill. 245; C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512. The\u2019 7th of appellee\u2019s instructions is erroneous in not being guarded enough in limiting the time in regard to the exercise of ordinary care from the time the engine driver saw the colt.\nIf the road was fenced with a good fence, the engine driver would not be required to keep looking out for stock on the track \u2014 he would rely on .the fact that the fence was put there to keep stock off, and would not be expecting any. See the Johnson case above. For the above reasons the judgment of the court below is reversed and the cause remanded.\nReversed and remanded.", "type": "majority", "author": "Lacey, P. J." } ], "attorneys": [ "Mr. William Latiibop, for appellant;", "Mr. H. C. Wabneb, for appellee;" ], "corrections": "", "head_matter": "Chicago, Milwaukee & St. Paul Railroad Company v. Almina R. Phillips.\n1. Attorney\u2019s fees \u2014 Common law and statutory negligence. \u2014 A declaration consisted of one count in which appellant was charged with killing a colt on'account of actual negligence in running a train, and again, statutory negligence in not fencing the road. There was evidence tending to show the appellant guilty of actual negligence aside from the question of fencing. The court instructed the jury that appellee had a right to recover for attorney\u2019s fees in any case of the right to recover for the killing of the colt. Held, that such instruction was improper. Recovery of attorney\u2019s fees is purely a statutory right. Attorney\u2019s fees could only be recovered if the loss of the colt was chargeable to the statutory negligence in not fencing; but if the loss was chargeable to common law negligence, only the value of the stock could be recovered, and not attorney\u2019s fees in addition.\n2. Negligence \u2014 Duty of engineer. \u2014 If an engineer or person conducting a train see cattle on the track and can by ordinary care, caution and diligence avoid injury to them, he is bound to do so, and if he fails the railroad company is liable, no matter if the owner of the stock was negligent in allowing his cattle to get on the track.\nAppeal from the Circuit Court of Winnebago county; the Hon. John V. Eustace, Judge, presiding.\nOpinion filed February 29, 1884.\nThis was a suit commenced by the appellee against the appellant to recover the value of a colt, the property of appellee, killed by the locomotive of the appellant on its railroad track.\nThere is but one count in the declaration, and in that the appellant is charged with killing the colt on\u2019account of actual negligence in running the train, and again, statutory negligence in not fencing the road as the statute requires. A claim is also set up for recovery under the statute requiring roads to be fenced, for reasonable attorney\u2019s fees for such services as the attorney for the plaintiff should perform in the case, in the circuit court or any court to which the case might be appealed. The verdict shows that appellee recovered $110 for the colt and $50 for attorney\u2019s fees.\nThere was evidence in the case tending to show that the appellant was guilty of actual negligence outside the question of the fencing.\nThe 6th instruction given for the appellee told the jury that the appellee had a right to recover for attorney\u2019s fees in any case of the right to recover for the killing of the colt and is as follows:\n\u201c If you find from the evidence that th\u00e9 plaintiff is entitled to recover in this action, then the court instructs you that the plaintiff\u2019s measure of damages against the defendant is the fair cash value of the colt in question, at the time and place the same was killed, and also such reasonable attorney\u2019s fees for services rendered in this court, as you may believe from the evidence the plaintiff is entitled to recover.\u201d\nThere was a conflict in the evidence, whether or not the gate at Bennett\u2019s crossing, where it was claimed the colt escaped from\u2019the pasture from Bennett\u2019s field onto the railroad right of way where it was killed, where it had strayed from Sheppardson\u2019s pasture where the colt was kept, was a good and ,lawful gate. If the\"1 gate was good, then the appellant would not be liable unless guilty of negligence in running the train.\nAnd it was claimed by appellee that even if the gate and fence there were such as the law required, yet there was actual negligence on the part of appellant in not carefully running the train, by means of which the colt was killed and the appellant thereby rendered liable; and such issue was fairly submitted to the jury by appellee\u2019s 7th and 10th instructions and appellant\u2019s 2d, \u00e9th, and 6th instructions. This is the only statement of facts there need be made in order to properly decide the case, except as are stated in the opinion.\nMr. William Latiibop, for appellant;\nthat by the public policy in this State, an express statute is required to enable a party to recover attorney\u2019s fees, cited Dowty v. Holtz, 85 Ill. 525; Litch v. Boyington, 84 Ill. 179.\nMr. H. C. Wabneb, for appellee;\nthat a complaint is not to be deemed to unite several causes of action, simply because it sets forth several grounds on which the defendant might be liable in respect to the same transaction, cited Walters v. Ins. Co., 5 Hun, 343; The People v. Tweed, 63 N. Y. Appeals, 200." }, "file_name": "0265-01", "first_page_order": 259, "last_page_order": 264 }