| Ill. | Jan 15, 1868
delivered the opinion of the Court:
The cow of the appellee, Arnold, was killed hy a train of the appellant, where the road passes through the farm of one Thomas Snell. The cow had come upon his farm from the public highway, through an insufficient fence, and passed from thence on to the railway track through an open space, designed as a farm crossing, where the company had erected bars about a year before the accident. The bars, however, had been down and wholly neglected for three months. On these agreed facts the court gave judgment for the plaintiff below.
If the bars had been taken down by the owner or occupant of the farm, and he had neglected to replace them, it might be urged, with great propriety, that his own acts would prevent a recovery in a suit brought by him. But in this suit it is immaterial whether the bars were taken down by the company or the occupant of the adjacent land. The company was guilty of negligence, under the statute, in allowing them to remain down for three months. The statute required the company to “ erect and maintain ” a sufficient fence, and of this fence the bars were a part. Great Western R. R. Co. v. Helm, 27 Ills., 199.
It is urged, however, that the cow of appellee was a trespasser on the farm of Snell. But under the law of this State, as long since settled by this court, cattle may go at large, and if they enter upon private property they are not trespassers unless such property is surrounded by a statutory fence. The fence, in this case, between the farm of Snell and the highway, was admitted to be insufficient, and, in determining the rights of the appellee, they must be passed upon as if no fence whatever had been there. If there had been no fence on the highway, it would hardly be contended that the company was not liable for allowing this opening in the railway fence to remain three months, and its track subject to be entered upon by all the animals running at large in the neighborhood, and a fence less than that required by law around the farm of Snell did not change the aspect of the case.
The judgment of the circuit court was in accordance with the former decisions of this, court, and must be affirmed.
Judgment affirmed.