Illinois Central Railroad v. Person ( 1887 )

Campbell, J.,

delivered the opinion of the Court.

So much of the evidence as related to the agreement, by virtue of which the fence was erected, was incompetent, and, if 'the objection to evidence had been thus limited, it should have been sustained. It was admissible to show the existence of the' fence and opening, in order that the conditions under which the-killing of the mule occurred might be known, so as to determine the existence or non-existence of negligence. The evidence of the engineer in charge of the locomotive is that he saw the mule thirty or forty feet from the railroad crossing running to the crossing, and it is not pretended that the cattle alarm was given, or anything done or attempted to frighten the mule or avert the collision. Under these circumstances a verdict for the plaintiff was demanded, and any other would have been properly set aside, if rendered. The jury was properly instructed, and, although evidence was introduced which should not have been,, .the verdict being a correct one on the competent evidence,, should not be disturbed.

Affirmed.