69 Ill. 198 | Ill. | 1873
delivered the opinion of the Court:
The duty imposed upon railroad companies by statute, (1st Gross, 539, sec. 1,) is “to erect and maintain fences suitable and sufficient to prevent cattle, horses, sheep and hogs from getting on to such railroad.”
It was proved on the trial, in the court below, by the testimony of appellee, and also by that of Burns and Henry, that the fence of appellant, where appellee’s mare got upon the railroad, was not of that description, and we think the jury were clearly authorized to find as they did.
We perceive no error in refusing the instruction asked by appellant. The court had previously, at its instance, instructed the jury, “that if the fence in question, at the place where it was broken down, and where the mare got upon the right of way, had been sufficient during the summer to turn appellee’s stock, and that it was in the same condition on the afternoon of the day preceding the night that the mare was killed, then the defendant is not liable for the value of the mare. The company are not liable for temporary insufficient condition of their fences, unless they have notice thereof, and neglect thereafter to repair.” This stated the law, applicable to the case, quite as favorably to the appellant as was proper. Whether the fence was sufficient to prevent cattle, horses, sheep and hogs from getting on to the railroad, was properly determined by an examination of the fence itself, and not by the previous conduct of animals which had been pastured on the ground which it, in part, inclosed.
The judgment of the court below is affirmed.
Judgment affirmed.
