James v. Illinois Central Railroad ( 1917 )

Mr. Justice Higbee

delivered the opinion of the court.

2. Appeal and error, § 1241*—when error in instructions cannot be complained of. A party cannot complain of an error in instructions where the same error is found' in the instructions offered by the complaining party. 3. Appeal and error, § 1522*—when omission of word in form of verdict submitted with instructions is not reversible error. In an action for damages against a railroad for killing a horse, where the court properly instructed the jury as to the form of the verdict, but two forms of verdict were, attached to the instructions, one being in the usual form for finding for the plaintiff, and the other was “We the jury find the defendant guilty,” held that the jury could not have been misled by the patent mistake of inadvertently omitting the word “not,” and, as the forms were properly stated to the jury, the mistake was not reversible error. 4. Railroads—when evidence insufficient to show wilfulness or negligence in injuring animal on track. In an action for damages against a railroad for killing a horse which got upon the track at a point where the defendant was not required to fence its right of way, where the freight train in question was going at the rate of about twenty-five miles an hour, and the evidence as to whether a curve in the track prevented the defendant’s engineer and fireman from seeing the horse in time was conflicting, and there was no evidence that the employees on the train saw the horse, save that of the fireman who testified that the horse was struck a few seconds after he saw it, held that if the testimony of the fireman was true there was no failure to exercise due care after discovering the horse, or even in discovering it, and that a finding that the employees were guilty of wilfulness or negligence in striking the horse would be against the manifest weight of ti^e evidence. 5. Railroads, § 789^*—when duty to use care as to animal trespassing upon tracks arises. The duty on the part of railroad employees to exercise care as to an animal trespassing upon the tracks arises only after such employees have' discovered the animal to be on the track.