{
  "id": 5367739,
  "name": "Joseph Schertz v. Indianapolis, Bloomington and Western Railway Company",
  "name_abbreviation": "Schertz v. Indianapolis, Bloomington & Western Railway Co.",
  "decision_date": "1883-11-19",
  "docket_number": "",
  "first_page": "577",
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      "cite": "107 Ill. 577"
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    "id": 8772,
    "name": "Illinois Supreme Court"
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  "last_updated": "2023-07-14T19:08:42.452950+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Joseph Schertz v. Indianapolis, Bloomington and Western Railway Company."
    ],
    "opinions": [
      {
        "text": "Per Cubiam:\nThis action was brought by Joseph Sehertz, before a justice of the peace, against the Indianapolis, Bloomington and Western Railway Company, under section 1 of \u201cAn act in relation to fencing and operating railroads, \u201d in force July 1, 1874, as amended by the act in force July 1, 1879, to recover for injuries done to his horse by defendant operating its road. On the trial before the justice of the peace plaintiff recovered a judgment, and on the appeal of defendant to the circuit court, where a trial ele novo was had, plaintiff recovered a judgment in a like amount, with an attorney\u2019s fee. That judgment, on the appeal of defendant, was reversed in the Appellate Court for the Third District, and final judgment rendered against plaintiff for costs. A majority of the judges of the Appellate Court having certified that the case, in their opinion, involves a question of law of such importance, on account of collateral interests, it should be passed upon by the Supreme Court, plaintiff brings the case to this court on appeal.\nBut a single question arises on the record, as the case now comes before this court, and that has relation to the true construction of section 1 of the act cited supra,. That statute provides, when the fences it requires shall be erected are not made as therein required, or when such fences are not kept in good repair, such railroad corporation shall b,e liable for all damages which may be done by the \u201cagents, engines or cars\u201d of such corporations, to cattle, horses, or other stock. On the hypothesis plaintiff\u2019s horse got on the track of defendant\u2019s road for want of such a fence as the law requires it to erect and maintain to inclose its track and right of way, and while on the track the horse was frightened either by the approaching train, or the sound of the bell or whistle, or all of them combined, and in its flight was injured, either by jumping a cattle guard, or by coming in contact with a wiro fence, or both, that no negligence or willful misconduct can be imputed to the agents of defendant in charge of the train at the time, and that no injury was done to the horse by any actual collision or contact with the engine or ears of the train, a majority of the court are of opinion the defendant is not liable. It is thought the true meaning of the section of the statute cited is, the injury must be caused by actual collision,\u2014that is, it must have been done by the \u201cagents, engines or cars\u201d of defendant. Here no direct injury was done either by the \u201cagents, engines or cars\u201d of defendant,, nor by any willful misconduct of the train men.\nIn P. and I. R. R. Co. v. Haskett, 10 Ind. 409, in construing a statute on the same subject, which made the corporation liable for stock that should be \u201ckilled or injured by the ears or locomotives or other carriages of the company, \u201d the court held that these words, in their ordinary import, evidently involved the idea of actual collision, and hence would not cover a case of consequential damages. In Lafferty v. Hannibal and St. Joseph R. R. Co. 44 Mo. 291, it was admitted that at the place where the injury was done to plaintiff\u2019s horse defendant\u2019s railroad was not fenced as required by statute. The words of the statute cited in that case are identical with the words contained in the statute of this State on the same subject,\u2014that is, in case of a failure . to comply with the provisions of the statute, the railroad corporation should be liable for all damages that might be done by its \u201cagents, engines or cars.\u201d In that ease, as in the one being considered, there was no collision, and the horse was not injured by any actual contact, and it was held the defendant corporation was not liable. It is thought the statute of this State admits of the same construction, and in a case where the stock is not killed or injured by any actual collision there is no liability on the railroad corporation. Consequential damages resulting from fright to animals, not caused by any negligence or willful misconduct on the part of the servants of the corporation, are not embraced in the statute.\nThe judgment of the Appellate Court will be affirmed.\nJudgment affirmed.",
        "type": "majority",
        "author": "Per Cubiam:"
      }
    ],
    "attorneys": [
      "Mr. W. E. Gafen, for the appellant:",
      "Messrs. Rowell & Hamilton, for the appellee:"
    ],
    "corrections": "",
    "head_matter": "Joseph Schertz v. Indianapolis, Bloomington and Western Railway Company.\nFiled at Springfield November 19, 1883.\n1. Baileoad\u2014liability for injury to animals caused by fright. Under the act in relation to fencing and operating railroads, in force July 1, 1874, as amended by the act of 1879, where a party\u2019s horse gets on the railroad track for want of such a fence as the law requires the company to erect and maintain to inclose its track and right of way, and while on the track is frightened either by the approaching train, or the sound of the bell or whistle, or all of them combined, and in its flight is injured, either by jumping a cattle guard, or by coming in contact with a wire fence, or both, and no negligence or willful misconduct is chargeable to the agents of the company in charge of the train at the time, and where no injury is done to the horse by any actual collision or contact with the engine or cars of the train, the railroad company will not be liable to the owner of the horse for such injury.\n2. Same\u2014statute relative to fencing, construed. The true meaning of section 1 of \u201cAn act in relation to fencing and operating railroads,\u201d as amended in 1879, is, that the injury to stock must be caused by actual collision,\u2014that is, it must be done by the \u201cagents, engines or cars\u201d of the company, or the willful misconduct of the train men, to make the company liable.\n3. Consequential damages resulting from fright to animals, not caused by actual collision, or any negligence or willful misconduct on the part of the servants of the company, are not embraced in the statute.\nAppeal from the Appellate Court for the Third District;\u2014 heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.\nMr. W. E. Gafen, for the appellant:\nOne great object of the statute was to protect persons and property from tlio dangers of stock getting on the tracks of railroads, and the construction of it should be such as most effectually to carry out that object. The ground of recovery under this statute is the failure to build the fences required. \u00a1No other fault in such case need be shown. Cairo and St. Louis R. R. Co. v. Murray, 82 Ill. 76.\nWhile appellee continued to run its ears on the track through appellant\u2019s field without fencing its track, it undertook, at its peril, that no harm should come to appellant\u2019s horse for want of a proper fence. McCoy v. California P. R. R. Co. 40 Cal. 532.\nMessrs. Rowell & Hamilton, for the appellee:\nUnder the statute, which is penal, and must be strictly and literally construed, the railroad company is only liable, in any event, for the damage which may be done by the \u201cagents, engines or cars\u201d of the railroad. If, then, it is clearly shown that the horse was not injured or struck by the \u201cagents, engines or cars,\u201d but ivas injured by being frightened by one passing train, and ran against some one else\u2019s fence, the company could not be liable, unless its servants willfully and maliciously frightened the animal.\nThis case is almost identical, in facts and circumstances, with P. and I. R. R. Co. v. Haskett, 10 Ind. 409, and the court there held the law to be just as the Appellate Court held it in this case. This decision was also strongly and expressly reaffirmed in Ohio and Mississippi Ry. Co. v. Cole, 41 Ind. 331; Indianapolis, Bloomington and Western Ry. Co. v. McBrown, 46 id. 229; B., P. and C. Ry. Co. v. Thomas, 60 id. 107; J., M. and I. R. R. Co. v. Downey, 61 id. 287. The case of Lafferty v. Hannibal and St. Joseph R. R. Co. 44 Mo. 291, is also exactly in point, and approves the Indiana eases. The same construction has also been given our statute by a court of high authority in this State, besides in this case. Chicago and Northwestern R. R. Co. v. Taylor, 8 Bradw. 108. See, also, Redfield on Railways, 493."
  },
  "file_name": "0577-01",
  "first_page_order": 577,
  "last_page_order": 580
}