#### The Toledo, Peoria and Warsaw Railway Co. v. John Logan.

Negligence—neglect to fence railroad. Railroad companies are responsible to the owners of stock killed by their trains, where they have not fenced their roads as required by the act of 1855, and the party injured can recover without proof of actual negligence in running their trains.

*192Appeal from the Circuit Court of Henderson county; the Hon. Arthur A. Smith, Judge, presiding.

This was an action, originally brought before a justice'of the peace, by John Logan against the Toledo, Peoria and Warsaw Railway Company, to recover damages for the killing of three hogs and injuring a mare of the plaintiff. The case was taken by appeal to the circuit court, where a trial was had, at the March term, 1873, resulting in a verdict and judgment of §30.25, in favor of the plaintiff. The defendant appealed.

Messrs. Ingersoll, Puterbaugh Bros. & McCune, for the appellant.

Mr. John J. Glenn, for the appellee.

Mr. Chief Justice Breese

delivered ' the opinion of the Court:

The main error relied on to reverse this judgment, is the refusal of the court to give this instruction :

“The jury are instructed, on the part of defendant, that before they can find for the plaintiff they must find-that the injury was occasioned by negligence on the part of defendant or its employees.”

The action was the same, in all important respects, as that of The Toledo, Peoria and Warsaw Railway Co. v. Pence, 68 Ill. 524, and must be decided in the same way. Rail wav companies are. responsible for accidents of this nature if they do not fence their road, as required by the act of 1855, and the party injured can recover without proof of actual negligence in running the trains.

The instruction was properly refused, and the judgment must be affirmed.

Judgment affirmed.