{
  "id": 2605859,
  "name": "Toledo, Wabash & Western Railway Company v. John Cole",
  "name_abbreviation": "Toledo, Wabash & Western Railway Co. v. Cole",
  "decision_date": "1869-01",
  "docket_number": "",
  "first_page": "184",
  "last_page": "186",
  "citations": [
    {
      "type": "official",
      "cite": "50 Ill. 184"
    }
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  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "47 Ill. 462",
      "category": "reporters:state",
      "reporter": "Ill.",
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        5270237
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    {
      "cite": "4 Ala. 413",
      "category": "reporters:state",
      "reporter": "Ala.",
      "case_ids": [
        8494532
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      "case_paths": [
        "/ala/4/0413-01"
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  "last_updated": "2023-07-14T17:50:26.600758+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Toledo, Wabash & Western Railway Company v. John Cole."
    ],
    "opinions": [
      {
        "text": "Mr. Chief Justice Breese\ndelivered the opinion of the Court:\nThe only question presented by this record is as to the declaration. It contained but one count, and that for killing and crippling a mare and a mule.\nThe defendants demurred, generally, to the declaration, which the court overruled, and the defendants abided by their demurrer. A jury was called to assess the damages, and judgment for the plaintiff for the damages so assessed.\nThe action was brought against the railway company under the act of 1855, for killing and crippling a mare and a mule, they having got upon the track, the same being injured at a place where, by law, the company were bound to fence.\nThe declaration, in its frame, is a substantial compliance with the statute, and with the rulings of this court thereunder.\nAn exception might be taken to it, in this, that it does not aver which animal was killed and which crippled. There is an averment, however, that by the act of the defendants in running their train upon them, they were lost to the owner. Here, then, damage and loss are alleged.\nThe point is made, that the statute does not include mules \u2014it is insisted they are neither horses nor cattle. In Alabama, mules are not considered cattle. Brown v. Baily, 4 Ala. 413. This was an action of trespass, for wounding certain cattle. The evidence was, that the defendant had killed one mule and wounded another.\nThe court held, that in Alabama, mules had never been regarded as cattle\u2014that there, the term \u201c cattle,\u201d in common parlance, does not include horses or mules. The plaintiff was held to the usual meaning of the term, especially, as evidence of the kind before the jury must have been a surprise on the defendant. But that was a question of pleading, and not applicable to this case, which is on the construction of a statute.\nWithout going into this subject, it is sufficient to say, this court, in the case of O. & M. R. R. Co. v. Brubaker, 47 Ill. 462, held, in a case similar to this now before us, that an ass was comprehended under the terms \u201c horses and cattle,\u201d as used in the statute. It is not going too far in this case, to say that a mule comes nearer a horse than an ass. On the authority of that case, we must hold that mules are embraced in the terms \u201c horses and cattle\u2019,\u201d as used in the statute.\nThe judgment must be affirmed.\nJudgment affirmed.",
        "type": "majority",
        "author": "Mr. Chief Justice Breese"
      }
    ],
    "attorneys": [
      "Messrs. Robertson & Barnes, for the appellants.",
      "Messrs. Morrison & Epler, for the appellee."
    ],
    "corrections": "",
    "head_matter": "Toledo, Wabash & Western Railway Company v. John Cole.\n1. Pleading\u2014of tile declaration\u2014in an action against a railroad company for injury to stock. A declaration in an action against a railroad company, contained but one count, and that was for killing and crippling a mare and a mule, but it was not averred which animal was killed and which crippled. This defect, however, was regarded as cured by a subsequent averment, that by the act of the defendants in running their train upon them, they were lost to the owner.\n2. Railroads\u2014liability for injury to a mule. Under the act of 1855, which requires railroad companies to make and maintain fences \u201c sufficient to prevent cattle, horses,\u201d &c., from getting on the road, a railroad company would be liable for injury to a mule, occasioned by a non-compliance with the statute, as mules are embraced in the terms \u201c cattle and horses,\u201d as used in this statute.\nAppeal from the Circuit Court of Morgan county; the Hon. Charles D. Hodges, Judge, presiding.\nThe opinion states the case.\nMessrs. Robertson & Barnes, for the appellants.\nMessrs. Morrison & Epler, for the appellee."
  },
  "file_name": "0184-01",
  "first_page_order": 184,
  "last_page_order": 186
}