Lake Erie & Western Railroad v. J. C. Beam & Son , 60 Ill. App. 68 ( 1895 )

Mr. Justice Boggs delivered

the opinion oe the Court.

A bull belonging to the appellees was struck by an engine and train of the appellant company, and so badly injured that it had to be, and was, killed. •

Appellees claimed it wandered upon, the railroad track because the appellant company failed to maintain a good and sufficient fence along the right of way.

They recovered judgment before a justiceof the peace and in the Circuit Court upon appeal, for the value of the animal, and the record of the latter trial is here by appeal.

Appellees left the'bull in their pasture which adjoined the right of way of the appellant’s road upon the west side thereof.

Adjoining the pasture on the south was a field belonging to one Flowers, which also adjoined the right of way.

The pasture extended west and south of this field, almost surrounding it. The railroad company maintained a fence between its right of way and the field and the pasture, and also a gate in the fence opening into the field and leading to a farm crossing over the railroad track.

It seems well proven the bull escaped from the pasture into the Flowers field, and from thence through the gate in the railroad fence to the right of way and track of the road, and was there struck by a train. It likewise appeared that the gate had been broken down some two or three months before, and was defective and insufficient. It was found standing open on the morning it was discovered the bull had been injured, and the proof showed it had been open almost constantly for two or three months. This evidence warranted the jury in declaring the company guilty of negligence in respect of the gate.

It is complained that the court erred in modifying appellant’s second instruction and in refusing instruction Ño. 3 asked in same behalf.

The instruction which was modified would, as asked, have advised the jury that “ The railroad company was not responsible for leaving the Flowers gate open, unless the plaintiff proved that its employes left it open.” • The court modified it by adding as follows: “ or knew that the same was open, or might have known the facts by the exercise of ordinary diligence.”

The criticism upon this modification is, it declared the company liable if it knew, or might by ordinary diligence have known, that the gate was open, whether it knew it long enough to have caused it to be closed, or if out of repair, had time in which to have repaired it. It is needless to enter upon a discussion of these points further than to say that the instruction as presented, should have been modified or refused, and that as modified it declared the law applicable to the testimony presented to the jury.

The instruction which was refused was as follows: ■

“ 3. The burden of proving every material point in his case is on the plaintiff, and if you believe from the evidence that the animal escaped through plaintiff’s own negligence, from his pasture into Flowers’ field and then through Flowers’ open gate, then your verdict should be for defendant.”

It was not sufficient to charge the appellees with contributory negligence and preclude a recovery, that the bull escaped from their pasture into the Flowers’ field through their negligence. Even if they had knowingly permitted the animal to pass into the Flowers’ field, they could not be charged with contributory negligence unless it further appeared that the natural and probable consequences of their so doing was that the stock would go upon the railroad track. Cairo & St. L. R. W. Co. v. Woolsey, 82 Ill. 370; Wabash R. R. Co. v. Perbex, 57 Ill. App. 62.

The court properly refused the instruction.

We are unable to see that the testimony relating to the condition of the railroad fence east of the track was pertinent to the issue.

But it did no harm, and its admission furnishes no sufficient reason- for interfering with the judgment, which is right upon the merits and well sustained by the proof.

The allowance of attorneys’ fees for services rendered by attorneys for the appellee in this court involves the hearing and determination of questions of fact and the right of trial by jury. ~We have no adequate or convenient mode for trying such questions.

The remedy is by action in a court of original jurisdiction. Kingsbury v. Powers, 26 Ill. App. 574; C. & A. A. R. Co. v. Kemp, 25 Ill. App. 39; I. B. & W. R. R. v. Buckles, 21 Ill. App. 184.

The judgment is affirmed.