| Ill. | Jan 15, 1868
delivered the opinion of the Court:
It is insisted that the first of appellee’s instructions is wrong, and misled the jury. It informs them that they may take the testimony of farmers as to the sufficiency of the fence to turn stock; and it is contended, that there is no evidence in the record that farmers had testified on that question. Even if there was no evidence, from which it might be inferred that a portion of the witnesses were farmers, still we cannot imagine how the jury could have been misled by it. Mor can we infer, as suggested, that the jury would conclude that they were authorized to hear such evidence after they had retired. If there was no such evidence, then the instruction had no possible application to the case. The court will never reverse simply because an instruction asserts a mere abstract rule of law, but it must be calculated to mislead, and the court must see that it may have misled the jury in finding their verdict.
The last clause of the second instruction is complained of as being too general. It asserts that appellants were bound to keep the fence in repair, so it was at all times sufficient to turn stock. Had this instruction not been limited by other instructions given, it would perhaps have been too broad, but it was sufficiently limited by the third instruction given for appellants. These instructions are neither so repugnant to each other, or numerous and lengthy, as to have left any doubt on the minds of the jury as to their meaning. "We can see no error in giving this instruction, when considered in connection with appellants’ instructions.
Was the verdict of the jury against the weight of the evidence, and against the instructions? We, after a careful examination of all the evidence in the case, can find no neglect or default on the part of appellants. Appellee built the fence himself, and he does not say in his evidence that it was insufficient to turn stock; nor does his evidence show that it was out of repair at the time the stock was killed. Hor does his other witness state that the fence was insufficient or out of repair. Appellants state that the place where the horses got over the fence was a crossing where the neighbors frequently passed, and that boards were sometimes knocked off, so as to render the fence insufficient until it was repaired; but there is no evidence that it was in that condition at that time. And even if planks had been broken off from that cause, the road would not be liable until they had a reasonable time to repair the injury, or had been notified of its condition before the horses were killed. Considering the evidence of appellee, disconnected and apart from that of appellants, it would be highly questionable whether it would sxistain the verdict.
Appellants’ evidence, if it can be believed, shows that the fence up to within a few hours of the time when the horses were killed, was in good repair. Donohue swears that he saw the fence twice on the Saturday one of the horses was killed, the last time about four o’clock in the afternoon, and that it was then in good repair. That he again saw it on Monday morning following; that one of the horses was killed on Saturday night, and the others were killed on the next night. That the next morning when he saw the fence, the planks had been nailed on the posts, but the top board had been freshly broken and the next one split and knocked off; there was hair on the boards, and it had all been recently done. When the proper agent of the company, whose duty it was to look to and keep the fence in repair, is shown to have seen it in good repair on Saturday afternoon at four o’clock, and again on Monday morning, we are at a loss to understand how there was any neglect of duty on the part of appellants. This would seem to be reasonable diligence in the discharge of their duty to the public and to the owners of stock along the line of the road.
The instructions fairly presented the law, and had the jury regarded them and applied the rules they announce to the facts, they would have arrived at a different conclusion and returned a different verdict. We regard it as manifestly against the instructions and the evidence, and the court below should have granted a new trial. The judgment of the court below is reversed and the cause remanded.
Judgment reversed.