#### The Chicago and Alton Railroad Company v. Zachary L. Taylor.

1. Allegation and Proofs. An averment in a declaration which is material, must be proven to authorize a recovery.

3. So in an action against a railroad company to recover for injury to stock, it was averred in the declaration that the road had been in use more than six months prior to the accident, and the road still remains unfenced, by reason of which neglect of duty the injury occurred. This was a material averment, and not being proven, a judgment for the plaintiff was reversed.

Appeal from the Circuit Court of Livingston county; the Hon. Charles R. Starr, Judge, presiding.

This was an action on the case brought in the court below by Zachary L. Taylor against the Chicago and Alton Railroad company. A trial resulted in a verdict and judgment for the plaintiff. The defendant thereupon appealed.

A statement of the case will be found in the opinion of the court.

*281Mr. A. W. Church and Mr. L. E. Payson, for the appellant.

Hr. John H. Barrit, for the appellee.

Mr. Chief Justice \Walker

delivered the opinion of the Court:

This was an action on the case brought by appellee against appellant to recover for injury to stock, occasioned by their engine and cars running upon their road. It is averred, as the law requires, that the road had been open for use more than six months previous to the time the injury was inflicted, and that it thereby became the duty of the road at the place where the accident occurred, to erect and maintain a sufficient fence to prevent stock from getting upon the track of the road, but that they had neglected to perform that duty, whereby the injury occurred. This averment was material and should have been proved to authorize a recovery.

We have carefully examined this entire record, and fail to find any proof of this averment. In the absence of such evidence, the verdict of the jury cannot be sustained; and the court below erred in refusing, for that reason, to set it aside; and, for this error, the judgment must be reversed and the cause remanded.

Judgment reversed.