Chicago & Eastern Illinois Railroad v. Gernand ( 1886 )

Conger, J.

The controversy in this case is one purely of fact, whether the appellant was liable for the injury caused to the horses of appellee or not, by reason of the defective condition of the gate at the farm crossing through which the horses passed and which gate it was the duty of appellant to keep in suitable repair;

We have carefully examined the evidence and think the jury were fully warranted in finding that the gate was in such a defective condition as would make appellant liable, and that according to every reasonable probability, because of such defect, the horses themselves pushed it open and thus got upon the track and were killed.

Objection is made that the court erred after appellant had rested its case, in permitting the appellee and another witness to be recalled by appellee and testify v hat the condition of the north gate was on the Saturday before the trial.

We can not see that the matter of this evidence could do any great harm, and as to the time when it was offered, it was discretionary with .the court trying the case.

Neither do we regard the instructions as subject to the criticisms made upon them.

' We are satisfied with the verdict of the jury and think it was sustained by the evidence. The judgment will be affirmed.

Judgment affirmed.

Note. — A petition for a rehearing in this case was denied.