| Ill. | Jan 15, 1873
delivered the opinion of the Court:
The admission in evidence of the ordinance of the town of Camp Point prohibiting the running of trains within the town at a greater rate of speed than six miles per hour, is first assigned for error.
It is contended that the ordinance is null and void, because the town had no authority to pass such an ordinance, and because the company was expressly authorized by law to fix and regulate the rate of speed of trains upon its road. There is no grant of power to this town, in express terms, to regulate the rate of speed of railway trains passing through the town, but bv its charter (Pr. Laws 1857, pp. 540 and 541) the board of trustees of the town have the power to declare what shall be considered as nuisances, and to prevent and remove the same, and to regulate the police of the town, and to make such ordinances as the good of the inhabitants of the town may require. Under these powers we- think the town possessed the authority so to order the use of private property within its limits as to prevent its proving dangerous to the safety of the persons and property of citizens; and we view the ordinance in question as but a police regulation for the preservation of the safety of persons and property, the adoption of which was no more than a fair exercise of the police power vested in the town. Nor has the railway company any just ground of complaint that the regulation interferes with the powers conferred upon it in its act of incorporation or by any other law of the State. In the exercise of the privileges so conferred upon it, the company is as much subject to the police laws of the State as an individual pursuing his business.. G. and C. U. R. R. Co. v. Loomis, 13 Ill. 548" date_filed="1852-06-15" court="Ill." case_name="Galena & Chicago Union Railroad v. Loomis">13 Ill. 548.
It is further assigned as error, the giving of plaintiff’s second instruction and the refusal of instructions asked by defendant.
Plaintiff’s second instruction was:
“2. If the jury believe, from the evidence in this case, that the cow of the plaintiff was killed within the corporate limits of the town of Camp Point, by a railroad train of the defendant, and that said train, at the time said cow was killed, was being run at a greater rate of speed than that prescribed by the ordinance of said town of Camp Point, which has been read in evidence, then said defendant is presumed to be guilty of negligence in killing the cow of the plaintiff.”
The objection taken to the instruction is, that it was calculated to mislead the jury by giving them to understand that the presumption of negligence therein named was a conclusive presumption.
The instruction was based upon the second section of the law of February 16, 1865, Sess. Laws 1865, p. 103, which is as follows:
Section 1. That hereafter whenever an)' railway company who shall, by themselves or agents, run, or put their trains or engines to be run, at a greater rate of speed, through the incorporated limits of any city or town in this State, than is permitted by the city or town ordinances respecting said railroad company, said railroad company so violating said ordinances, either by themselves or agents, as aforesaid, shall be liable to each individual sustaining damage done by said train or engine, to the full extent of such damage.
Sec. 2. Should any live stock be killed by any of the railroad companies, or their agents, in manner set forth in section one of this act, the same shall be presumed to have been done by the negligence of said company or their agents.
The instruction is no doubt somewhat open to the objection made, that it might be understood by the jury that the presumption of negligence, where the killing of the animal took place under the circumstances stated, was conclusive, and not subject to be rebutted by proof of the actual facts to the contrary. Still, the instruction in this respect was given in the language of the statute, and we could hardly pronounce to be error the laying down the law in the'words of the law itself.
Had defendant’s counsel been apprehensive that the jury might be misled by the instruction as to the character of the presumption, he might have asked, on his part, an explanatory instruction to the effect that the presumption was not a conclusive but only a prima facie one.
And such, in effect, may be considered the fourth instruction which was given on behalf of the defendant, as follows :
“4. That if the jury believe, from the evidence, that the cow was on the railroad track at the time of the injury, as stated by the witnesses, then she was wrongfully there, and if they believe, from the evidence, that she was injured without the fault of the defendant, and when the employees in charge of the train were using proper care and diligence to avoid the injury, that then they will find a verdict for the defendant.”
The refused instructions which were asked by the defendant were manifestly erroneous, in view of the act of February 16, 1865, above cited, except the second one of them, and that we regard as substantially embraced in the fourth instruction which was given for the defendant.
Perceiving no sufficient error in the record to require a reversal of the judgment, it must be affirmed.
Judgment affirmed.