Peoria, Decatur & Evansville Railway Co. v. Aten

Phillips, P. J. Erom the facts appearing in this record there is not a preponderance of evidence showing the defendant guilty of negligence in the management of its train, even if the bell was not rung or the whistle sounded as required by the statute. Mo recovery could be had for that cause unless it was made to appear by facts and circumstances preponderating, that the accident was the result of such neglect. Quincy, Alton & St. Louis R. R. Co. v. Wellhoener, 72 Ill. 60; Terre Haute & Indianapolis R. R. Co. v. Tuterwiler, 16 Ill. App. 197. The evidence that tracks of a horse or horses, apparently running, were seen on the road-bed, is not evidence sufficient to authorize a verdict of guilty of negligence in the management of the train. In the case of the Bockford, Rock Island & St. Louis R. R. Co. v. Connell, 67 Ill. 216, it was said : “ The manner of the killing is not described by any witness. The only facts relied on to charge the company, other than the killing itself, are that tracks supposed to have been made by the mule were discovered on the road-bed for a distance of a hundred and fifty yards from where it was struck, and leading in the same direction, and the tracks indicated the mule had been .running. The evidence affords no explanation as to when the tracks were made, whether as this train was advancing, or at a time anterior. There is not a fact or circumstance proven that shows or even tends to show the engineer saw, or by the exercise of reasonable diligence could have seen the mule in time to stop or even slacken the speed of the train so as to have avoided the accident.”- What is said in that case is applicable to the evidence in this; what horse made the tracks, whether the black horse that escaped injury or those billed, is not shown. The time the tracks were made is not shown, nor that the engineer, by the use of reasonable diligence, could have avoided the accident. The case of Chicago & N. W. R. R. Co. v. Barrie, 55 Ill. 227, is not an authority in point; there it was proven the cattle on the tracks were seen or could have been seen by the engineer in time to have avoided the injury. This record contains no such evidence.- 2s!"or would the fact that the train was running at a high rate of speed be evidence of negligence. Toledo, Wabash & Western R. R. Co. v. Barlow, 71 Ill. 640; Wabash, St. Louis & Pacific Ry. Co. v. Kirk, 13 Ill. App. 387. . The evidence shows that the road was fenced and the injury occurred at a place where it was the duty of the company to fence the road; but it is insisted by the plaintiff that the fence and gate were not sufficient to turn stock. The primary question and the precise fact to he considered is, as to where the horses went upon the right of way. Great Western Railroad Co. v. Hanks, 36 Ill. 284; T., P. & W. Ry. Co. v. Darst, 51 Ill. 365; Alsop v. O. & M. Ry. Co., 19 Ill. App. 292. At no place where the evidence shows the fence to have been out of repair, is it shown that the horses passed onto the right of way, and the witnesses state if they had passed down the bank, along the ravine and under the wire, it would have been evidenced by the tracks of the horses, and at no place where the horses could have passed on the right of way were tracks found, except at the gate; that the conclusion is irresistible, that it was at that place the horses went upon the right of way. The gate was of a bind in general use and was in good repair and fastened in the manner that bind of a gate is usually fastened. It was closed when the horses were put in the field, and from the evidence it is apparent it was left open by some person passing during the evening. Ko negligence of the company is shown with reference to the closing and manner of fastening the gate, and it being casually left open during the night, because of which the horses escaped on the right of way, is not negligence on the part of the company that would authorize a recovery. C. & N. W. R. R. Co. v. Barrie, supra; I. & St. L. R. R. Co. v. Hall, 88 Ill. 368; C., B. & Q. R. R. Co. v. Sierer, 13 Ill. App. 261. 'And however the question may be as to the sufficiency of the fence and its condition of repair, the horses did not get upon the track by reason of any defects of the fence; an d the condition of the fence could not give the plaintiff a right to recover for the horses. I. C. R. R. Co. v. McKee, 43 Ill. 119; T., H. & I. R. R. Co. v. Tuterwiler, supra. It is insisted that the court erred in allowing evidence as to the condition of the fence at places other than where the horses got upon the track. While that is the material question with reference to the right of recovery for the horses (C., B. & Q. R. R. Co. v. Farrelly, 3 Ill. App. 60), still the counts of the declaration which charged the killing of hogs at other times, authorized the admission of evidence as to the condition of the fence at places other than where the horses went on the track, the condition of the fence being insufficient to turn hogs; the recovery on the counts for killing the hogs was proper. The second instruction given for the plaintiff is: “ The jury are instructed, as a matter of law, that if a railroad company or its servants fail to perform a' duty prescribed by statute, such failure is negligence of itself, provided it is the proximate cause of any injury to the person or property of another.” Ko person saw the injury unless it be the engineer, and he testified he sounded the whistle, and there is not a particle of evidence showing the injury resulted from the omission to sound the whistle or ring the bell, and the jury could not have understood this instruction as pertaining to anything other than an omission to ring the bell or sound the whistle; hence there was no evidence on which to base that instruction. Objection is made to certain other instructions for plaintiff which would be well taken if nothing was involved but the horses; yet, as other stock was killed at other times, the exceptions to other instructions are not well taken. For the errors indicated the judgment is reversed and the cause remanded. ' Reversed and remanded.