Ohio & Mississippi Railway Co. v. Jones

Mr. Justice Thornton delivered the opinion of the Court: The only question presented for determination is, whether the “act to prevent domestic animals from running at large in certain counties,” (Sess. Laws 1867, p. 97,) repealed the law requiring railroads to fence their roads. The general railroad law requires railway companies to erect and maintain fences on the sides of their road sufficient to prevent horses, etc., from getting on to such railroad; and for neglect so to do, the corporation is rendered liable for any injury to stock done by its agents or engines. The appellant corporation had not fenced its road at the place where the horse was killed. The law of 1867, which is set up as a defense, provides that the owners of domestic animals shall not suffer the same to run at large. It Avas admitted that the horse was not at large"Avith the knoAvledge or consent of the plaintiff, but had strayed from his enclosure, and therefore he did not suffer him to run at large. This term, in the Iuav, implies permission. The corporation had wilfully neglected the performance of a duty imposed by the statute. The other party had not violated the law. Hence, the omission to fence created a liability on the part of the railroad company. The statutes referred to are not so inconsistent and repugnant that one repeals the other by necessary implication. The mere enactment that owners of domestic animals shall not permit them to run at large, does not supply or supersede the necessity for the police regulation, which requires railroad corporations to fence their roads. The regulation is needed for such an instance as the present. We know that horses and cattle often escape from the enclosure of the owner, notwithstanding the utmost care, without his knowledge and consent, and when all reasonable efforts may be made to prevent it. The legislature certainly never intended to repeal a wise and beneficent law, so necessary to the protection of the property of the citizen, and license these corporations to destroy it, with-impunity. The existence of both these statutes was recognized by this court in C. and N. W. Railway Co. v. Harris, 54 Ill. 528. The judgment is affirmed. Judgment affirmed.