Toledo, Peoria & Warsaw Railway Co. v. Darst ( 1869 )

Mr. Justice Lawrence

delivered the opinion of the Court:

In this case, the court overruled a demurrer to the declaration and the defendants abided by the demurrer. We are of opinion the demurrer should have been sustained.. • The declaration avers that the road was not fenced at the place where the injury occurred, but does not av.er that it was not fenced where the steer went on the track.' Everything averred in the declaration may be true, and the company still not liable, for the steer may have gone on the track at a place where the road was fenced. Counsel for appellee cite St. Louis, Alton & T. H. R. R. Co. v. Linder, 39 Ill. 433, but that case merely decides that a certain instruction, though loosely drawn, could not have misled the jury.

The first count is also defective in its averment that the road had been opened for six months. It contains no other averment upon this point, than that the road had been opened more than six months at the place where the injury occurred. But the averment should have been in relation to the place where the cattle strayed upon the road, which may have been miles distant from the place of the injury. The entire declaration is, in other respects, very loosely and inartificially drawn.

The judgment must be reversed and the cause remanded.

Judgment reversed.