Morrow v. Hannibal & St. Joseph Railroad

Ellisoh,- J. This action is to recover single damages for killing plaintiff’s cow, in Callao township, Macon county. Plaintiff recovered and defendant appeals. The case was begun before a justice of the peace, the statement charging that defendant, by its employes, negligently and carelessly permitted brine and other rubbish to accumulate and collect on and near its track, which attracted cattle and caused them to collect at that point. Defendant offered no evidence, but demurred at the close of that offered by plaintiff. The instruction given at the instance of plaintiff properly covered the issues in the cause, and we have, therefore, only to consider the sufficiency of the evidence. It appears that a large refrigerator was owned by several merchants, and was situated about one hundred yards from defendant’s track. The owners “used ice, salt, and other things in the refrigerator, and drained it by leading a tube from the bottom of it to the railroad embankment. The drainage from the refrigerator ran down into the cut from the mouth of this tube or spout.” By this means the ground became saturated with brine, and cattle congregated there to lick. It was shown that this condition of affairs had existed for more than a year, and that it was notorious that cattle were being attracted by this drainage, and that many had been killed at that point by defendant’s cars. ' No one saw the cow struck, but one witness “found hair on the ties, and the ground dragged just opposite where the spout comes out and toward the west.” [438] We consider the evidence ample to justify the conclusion that the animal was struck by defendant’s cars; and the length of time that the drainage had existed there, and that cattle were attracted by it, together with the fact of several having been killed at that point, we consider was ample to justify the conclusion that defendant knew of it, and negligently permitted it to remain. The judgment is affirmed. Hall, J., concurs Philips, P. J., dissents.