Illinois Central Railroad v. Weathersby

Coopee, C. J., delivered the opinion of the court. The declaration is for an injury caused by the negligent acts of [584] the defendant in permitting its gate to be left open, by reason of which the plaintiff’s mare strayed upon the track, and then by negligently so frightening her that she ran into a trestle and was fatally injured. The instructions asked by the plaintiff and given in the court below are applicable only in cases in which the injury has been inflicted by the “ running ” of the trains of a railroad. There is no allegation in the declaration that the injury was caused by the running of the train within the meaning of the statutes on this subject, nor was there any proof from which such fact could have been found by the jury. The sole question as presented by the declaration is whether the company was guilty of negligence in not stopping its train when the dangerous situation of the animal was discovered by its servants, and on this issue the burden of proof was on the plaintiff and not on the defendant. Judgment reversed.