28 Ill. 513 | Ill. | 1862
This was an action on the case for killing three colts, at a railroad crossing, by a train of defendants. No question was raised as to the sufficiency of the fence or cattle-guards. Among others, the following instruction was given for the plaintiff, which was excepted to:
“The jury must determine as to the credit due to the several witnesses who have testified in this case, and if the jury believe that there is a conflict of the testimony between the witnesses for the plaintiff, and the witnesses Cooley and Sweetland, it is proper for the jury to consider the relation of said witnesses, Cooley and Sweetland, to the defendant; the contradictions of each other, (if any) in their respective statements about the ringing of the bell in question, and putting down the brakes; the fact (if proved) that the witness Cooley was engineer on the engine and cars in question, and liable to the defendant for negligence in directing said engine; and the fact (if proved) that he has been released by the defendant to enable him to swear as a witness in this case; and if upon the testimony the jury are in doubt as to the correctness of the statement made by said Cooley and Sweetland; and the jury believe, from the weight of all the testimony, that the colts in question were killed on the crossing of a public highway by defendant’s engine, as charged in the plaintiff’s declaration, and that said colts were the property of the plaintiff; and the jury believe such killing might have been avoided by the exercise of ordinary care by the servants of defen da' ' directing said engine, they will find for the plaintiff.”
This is not easily understood from the confused and inartificial manner in which it is drawn. In the concluding part of it, however, this principle is clearly laid down, that if the plaintiff’s colts were killed at the road-crossing by the defendant’s engine, and that the accident might have bee’i avoided by ordinary care on the part of those in charge of th train, then they must find for the plaintiff, no matter of what degree of carelessness the plaintiff might have been guilty, in leaving his colts on the track. This is not the law, as we have often held. If the plaintiff was guilty of negligence, or the want of ordinary care, in allowing his colts to run in the road near this crossing, considering their want of capacity to appreciate the danger of standing on the track, or their liability to become frightened and then attempt to cross the track in front of an approaching train, which the proof shows they did here, then the plaintiff could not recover, although the servants of defendant may have been guilty of negligence also.
The following instruction asked for the defendant, was refused :
“ The defendant has a right to use its railroad and run its cars thereon without obstruction, and the plaintiff’s horses had no right to be standing on the track of said railroad, or passing over the same, at a crossing, in the way of an approaching train ; provided, the usual signal on approaching a crossing, by sounding the whistle or ringing the bell at least eighty rods from such crossing, was observed by the defendant, or its servants, having the management of such train.”
¥e are unable to perceive anything wrong in this instruction, and think it should have been given. The defendant certainly had a right to the use of its track, at the road-crossings as well as at other places, and the plaintiff had no right to have his horses stand upon the track, or to jump across it, or pass over it in the way of, or so as to come in collision with, an approaching train, provided those in charge of the train had rung the bell or sounded the whistle, as the law requires. It is due to the traveling public, and the safety of human life requires, that the owners of stock should not be encouraged to allow it to stand or lie upon a road-crossing on a railroad track. Suppose the owner of stock should herd it at night in the road at such a crossing, knowing the propensity of cattle to lie down in the dust, or on bare ground, instead of on the grass, especially in warm nights, and an animal lying on the track should be killed, would any sane man say his own carelessness did not contribute to the loss ? On the contrary, the law would hold him responsible for any damage which might accrue to the train, or persons upon it, resulting from such reckless or criminal carelessness. This instruction should have been given.
The judgment is reversed, and the cause remanded.
Judgment reversed.
