27 Ill. 55 | Ill. | 1861
The appellant’s .counsel is mistaken in the supposition that the proof does not show that the place where the cattle were killed was not in a town or village or at a road crossing. The proof does clearly show that at the place where the accident happened, the company was bound to maintain a good and sufficient fence.
If the fact were clearly established, that the fence was up, the night before, at the point where the cattle actually got in, we think that would be a sufficient compliance with the duty imposed by the law, which is, to maintain a good and sufficient fence. "When up, the proof does not show that the fence at this point was not good and sufficient. It cannot be the duty of the railroad company to keep a patrol all night the whole length of their road to see that the fence is not broken down by breachy cattle, by evil men, or by a whirlwind. If the company use all reasonable diligence to keep up the fence, that is all the law requires, and it is not guilty of negligence in that particular. Although the proof in this case tends to show, that the fence was up the night before, it is by no means of so conclusive a character as to require ús to set aside the finding of the court below, for that reason. The foreman in charge of the repairs of the road at that point, whose duty it was also to keep up the fence, first states that he passed down the road about six o’clock the night before, and that the fence at the point where the cattle got in was then up, and that at six o’clock the next morning he found it down, and put it up. He afterwards states that it might have been down the night before, but that he did not see it down, and he thinks it was not. This shows that he depended on his general observation, and that his attention was not directed to this particular point; nor does he state that his mind was on the subject, and-that he expressly examined the fence on his way down, to see that it was up. The witness Penrod says, that he had seen the fence down at that point, but whether before or after the night in question he could not say. But as the witness Burnes says he put up the fence as soon as he found it down on the morning when the cattle were killed, this tends to fix the time when Penrod saw it down, as having been before that morning. At any rate the evidence tending to show that the fence was up the night before, is not sufficiently conclusive, to justify a reversal of the judgment for this cause.
The judgment must be affirmed.
Judgment affirmed.
