St. Louis, Jacksonville & Chicago Railroad v. Thomas , 47 Ill. 116 ( 1868 )

Mr. Justice Walker

delivered the opinion of the Court:

■This was an action on the case, for killing stock on appellant’s road. The declaration contained three counts, to which a demurrer was filed and special causes were set down. The ■first is, the want of a venue of the injury. The caption or ■■’.title'of'the declaration is, “ State of Illinois, Morgan county.” The averment is that the company “ was then running divers .loc'omdtive engines and railroad cars, operated in and upon . ‘saadirajj-'road track, by the servants and agents of said railroad company; and the said defendant so operating said Tóeómptiyes and cars, in and upon said railroad track, on the •day and year aforesaid, ran said locomotive and cars against and upon one steer, the property of the plaintiffs, and then and there killed the said steer.” While this is not accurately formal pleading, we think that the “ then and there ” obviously refers to the time and place previously mentioned. And, as but one date, and the name of but one place, had preceded this averment, they were referred to, and Morgan county being named in the caption to the declaration, it was thus named as the venue.. In the second and third counts, the venue is referred to as being at the “ circuit aforesaid.” This answers the rule of pleading, that every traversable fact must be laid with a venue. It is true, this is but form, but appellants, as they had a right to do,' objected for the want of form, by setting it down as a special cause in their demurrer. This ground of demurrer was not well taken.

It was assigned as special ground of demurrer that there is no averment that the property killed was of any value. This point seems to have been abandoned, as it is not referred to in appellant’s brief, and we, therefore, deem it unnecessary to enter into the consideration of this question.

So far as we can see, the declaration does negative all of the exceptions in the statute; it may be not in the most formal manner, but in substance. And it is sufficiently averred that the railroad was used and operated in the State of Illinois, arid within the jurisdiction of the court. And it' is averred that a fence was necessary to prevent stock from getting upon the railroad track at the place where it was killed. After a careful examination of this record, we perceive no error for which the judgment of the court below should be reversed, and it must be affirmed.

Judgment affirmed.