Wabash Railroad v. Perbex

Mr. J ustice Boggs delivered the opixioh of the Court. The law prohibiting domestic animals from running at large did not relieve the appellant company from its duty under the statute to erect and maintain fences along the side of its right of way, nor from liability if stock be killed or injured in consequence of its failure to observe that duty. Ewing v. Chicago & Alton R. R. Company, 72 Ill. 25; Rockford, Rock Island & St. Louis R. R. Company v. Irish, 72 Ill. 404; Cairo & St. Louis R. R. Company v. Woosley, 82 Ill. 370. The statutory duty of the company to maintain such fences includes the duty of using reasonable diligence to keep gates at farm crossings closed. Ill. Central R. R. Company v. Arnold, 47 Ill. 173; Chicago & N. W. R. R. Company v. Harris, 54 Ill. 528. The company could not, as against the appellee, exempt itself from the consequences of a failure to observe that legal duty of keeping the gate closed, by showing that it supposed a third person might or would perform it. The duty of the company as to its fence was not affected or relaxed, because the field into which the gate in question opened was devoted to growing crops. The statute makes no such exception. It is held in some jurisdictions that railway fence laws are exclusively for the benefit of the owners of lands adjoining the right of way of the road, but such is not the prevailing doctrine. 7 Amer. & Eng. Ency. of Law, p. 933, note 1, Sub-title, “ Cattle not lawfully on adjoining lands,” and cases there cited. The rule in our State is, that such laws are for the benefit of all owners of stock, and that the railway company is liable if stock is injured by reason of its failure to observe the law, unless the owner of the stock is guilty of contributory negligence, and that it is not sufficient to charge the owner with contributory negligence to show that he knowingly or negligently permitted the stock to be at large in violation of law, but that it must appear that he did so under such circumstances that the natural and probable consequences of his so doing was that the stock would go upon the railroad track and be injured. Cairo & St. Louis Railroad Company v. Woosley, supra. In the case at bar it is not contended that the appellee knowingly permitted the cattle to be'at large, but that he negligently omitted to keep his fence in good and sufficient repair to restrain them upon his premises. The natural and probable consequences of his neglect in this respect was, that his cattle would trespass upon the adjoining field of William Shoney. It was highly improbable that they would pass through the fence inclosing that field into Brownlow’s premises, and from thence would, or could, wander through another fence, into Griffin’s cornfield, and from there get through the railroad fence upon the railroad track and be injured. Proof that appellee had not a sufficient fence did not, under the circumstances proven, tend to charge him with contributory negligence. It was not, therefore, error for the court to omit all as reference to that charge in the instructions. The controlling distinction to be drawn between this case and McNeer v. Boone, 52 App. 181, Bulpit v. Matthews, 145 Ill. 345, and Selover v. Osgood, 52 App. 260, is, that in each of these cases the owner of the land upon which the animals trespassed, was absolved by the act of legislature prohibiting domestic animals from running at large from all duty to erect fences, so that such animals could not come upon his premises, but as we have seen the act had not this effect as to the statutory duty of the appellant company. It stood charged after the passage of that act as before, with the statutory duty of keeping its track inclosed by a good and sufficient fence, so that domestic animals, named in the statute, could not wander into places made dangerous by the operation of its trains. It failed to discharge this duty, and, under the proof, was properly held liable for the consequences. The judgment must be affirmed.